Aner 


NOTES 


ON 


THE CONSTITUTION OF 1901 


BY 


WILLIAM JONES SEABURY, D.D. 


“Charles and Elizabeth Ludlow’ Professor of Ecclesiastical Polity and Law, in the 
General Theological Seminary, New York. 


New York: 
THOMAS WHITTAKER, 


2 & 3 Biste Howse. 


RESPECTFULLY DEDICATED 
TO THE 
MEMBERS OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED 
STATES OF AMERICA ; 
AND TO OTHERS WHO MAY BE INTERESTED IN ITS 


REPRESENTATIVE SYSTEM. 


PREFACE. 


The latter part of “An Introduction to the Study of Ecclesi- 
astical Polity,” published in 1894, contained an application to the 
American Ecclesiastical System of the federal principles involved 
in the foundation of the Apostolic Office; and in the course of the 
application such comment as appeared to be required was made upon 
the Constitution which forms the basis of that System. 

The amendments to this Constitution which were accomplished 
in 1901, while they have not, so far as I have been able to observe, 
impaired the value of the principles upon which my comments pro- 
ceeded, have yet made so much alteration in the arrangement, and 
mode of expression of the articles commented on, as to deprive my 
references ofthe accuracy essential to correct citation. Explanation 
being needed to make them intelligible under the present phase of 
the Constitution, it has been found more convenient to embody that 
explanation in a distinct treatment of the Instrument itself; and 
this has given occasion to the further extension of comment which 
is here presented in the hope that it may be useful. 

For convenience of reference, copies of the Constitution of 
1898 and 1901, reprinted by permission of the Secretary of the 
House of Deputies, have been placed at the end of the Essay. 


Wo J.8. 


8 Chelsea Square, New York. 


Feast of the Annunciation rgo2. 


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INTRODUCTION. 


The action taken in General Convention at its recent session 
in regard to the Constitution, differed in one important respect from 
any action taken as to that Instrument since the time of its first 
authoritative establishment in 1789. The Constitution has at var- 
ious times been amended in various particulars; but it has now for 
the first time since its adoption undergone a general revision, and an 
amendment involving extensive re-arrangement of matter already 
contained in it, as well as considerable addition of matter entirely 
new in that relation. The Constitution amended in due accord- 
ance with its own provisions, presents itself still as the same Consti- 
tution. But, naturally, when amendments are limited to par- 
ticular points, the attention is especially directed to those points, 
rather than in general to the Instrument itself, which continues to 
be taken for granted much as it was before; whereas amendment of 
so general a character as that before us, seems rather to invite atten- 
tion to the Instrument as a whole, and to suggest questions as to its 
nature, origin and history. Without entering, however, upon the 
formal consideration of the topics thus suggested, it is proposed at 
present to examine the Constitution as set forth in 1901; to note the 
changes which were accomplished in the then completed amend- 
ment ; to discriminate between new matter, and that which is trace- 
able to previous Constitutional provisions; and to discuss incident- 
ally, and so far only as may appear to be necessary, such matters of 
general Constitutional information and interest as seem naturally 
to present themselves in the fulfilment of this practical endeavor. 

It is much desired to confine the present essay within such 
limits; and, above all, to refrain from anything that may wear the 
appearance of being speculative, or in advocacy of merely theoretical 
and impracticable distinctions. There are, however, certain mat- 
ters important in their relation to the nature of that action whose 


~ 
‘ 


§ INTRODUCTION. 


results we are to examine, which cannot justly be disposed of with- 
out a somewhat extended discussion; although, perhaps, not more 
extended than may be suitable to an introduction: and, as these 
matters seem to le upon the threshold of our enquiry, we may as 
well approach them through the medium of the title to the Instru- 
ment, the words of which indeed are not without a bearing upon 
them. 
The title is as follows: 


“Constitution Adopted in General Convention in Philadelphia, 
October, 1789, as Amended in Subsequent General Conventions ” 


The last clause in this title was added in 1901, to the title 
previously in use. The addition serves the purpose of identifying . 
the present Constitution with that adopted October, 1789.- Other- 
wise the title is the same (with insignificant variations in punctua- 
tion probably attributable to the process of editing for publication), 
through successive editions of the “Digest” with which it is printed, 
back to the year 1859, when the Digest first appeared, and back of 
that in the Journals to 1844, inclusive. Between that date and the 
year named in the present title, whenever the Constitution appears 
in the Journal, which is not always, it bears the same title as was 
prefixed to it in that year, 1789. 

The use of the word “Constitution” in this. title, without an 
article, definite or indefinite, is noticeable. It gives the title some- 
what the appearance of an endorsement on a paper folded for filing. 
It is a sort of memorandum note, which in part suggests questions, 
and in part waives the answer to them. No formal declaration is 
made as to the body of which this Instrument is the Constitution ; 
as to the authority by which it is imposed; or as to the proper ob- 
jects of that authority. The title “Constitution” appears to as- 
sume the existence of information as to such points as these, with- 
out undertaking to communicate it. But laconic as it is, it suffices 
to point out that the Instrument so entitled, being printed with the 
Journal of General Convention, and prefixed to a code of canons or 
laws emanating from that body, is, in legal obligation, of a kind 
distinguishable from those Canons; one being Constitutional and 
the other legislative; one being a law to law givers, a rule of ac- 


SUGGESTIONS OF TITLE. 9 


tion to be followed by those to whom the legislative and other func- 
tions of government are thereby entrusted; the other containing 
the laws enacted in subordination to that organic law from which 
the legislators have derived their authority. 

Another suggestion, for which we are indebted to this brief 
title, bears upon the much mooted question as to what that body is, 
of which this Instrument is the Constitution. Explicit informa- 
tion upon this point, as has been before observed, is not given; 
and we are left to the consideration of the internal evidence furn- 
ished by the Document itself and to such extraneous information as 
we may haply possess, in order to the determination of it to our own 
satisfaction. 

It has been claimed by some that this Instrument is the Consti- 
tution of General Convention; by others it has Leen claimed to be 
the Constitution of the Protestant Episcopal Church; and by others, 
to be the Constitution of the Association of Diocesan units which 
are integral or elementary parts of that Church; or more briefly, 
but less precisely, the Constitution of an Hcclesiastical Union cor- 
responding with the Civil Union known as the United States. 

The claim that the Constitution is that of General Convention, 
has certainly the merit of brevity and simplicity; but it is apt to 
involve also the recognition of an inherent authority in that hody, 
not properly attributable to a representative assembly. In the 
sense that the Constitution is the organic law under which General 
Convention has its authoritative being, and only in accordance with 
the provisions of which it may act, we might say that this is the 
Constitution of General Convention ; but not in the sense that that 
body is of its own authority the originator of this Constitution ; 
that it has imposed it upon itself, and may by its own power alter, 
suspend or abrogate it. 

It is not indeed essential that a Constitution should be imposed 
by a body upon itself. We regard the Church, considered as 
a visible Society of Christ’s establishment, as living in the 
world under a Constitution imposed upon it by Christ Him- 
self, and by the Apostles acting under His authority, and guided by 
the Holy Spirit: and whatever action in regard to its own concerns 
this continuously existing Society may at different times, in differ- 


10 INTRODUCTION. 


ent places, see fit to take, it is always limited to the due observance 
of the Faith, the Sacraments and the Ministry, which are the es- 
sential elements of that Constitution. Action taken by any body 
being, or claiming to represent, the Church in any time or place, 
contrary to these fundamental, and in a proper sense Constitutional 
principles, is no action capable of obligation upon the conscience of 
its members. And to those who recognize the Church as living thus 
under a Constitution, which although unwritten is real and capable 
of determination by proper evidence, it cannot seem necessary that 
the Constitution of any body should be a Constitution imposed 
upon itself. 

It might therefore be admitted that the Instrument under con- 
sideration could be the Constitution of General Convention, in the 
sense of being the organic law of its existence and action; always 
reserving to the body which has established the Constitution its due 
recognition of paramount authority in the premises. That there is 
such a body, and that it has an existence distinct from and inde- 
pendent on General Convention seems to be necessarily implied in 
the terms of the title, and accordingly assumed throughout the In- 
strument itself. The title designates the Constitution as “Adopted 
in General Convention.” Whatever General Convention may be, as 
to which no information is yet given, it is evident that this written 
expression of organic law was the act of a body distinct from, and 
acting in General Convention. And it is to be noted in passing 
that by the terms of the title it appears that this body is, legally 
speaking, the same body which acted in General Convention “in 
Philadelphia, October, 1789.” Though time and the personal 
changes inseparable from time, have intervened between that date 
and the present, that body which existed in 1789, and then acted in 
General Convention in the adoption of a Constitution, has since 
continued to exist, and continued to act in General Convention, and 
has now in 1901 acted in General Convention; as is manifest from 
the fact that the Constitution set forth in 1901, is described as 
adopted in General Convention, October, 1789, and “As amended 
in subsequent General Conventions.” 

And lest it should seem that too much importance is here at- 
tached to the use of one preposition instead of another, since prepo- 


REASON FOR FORM OF TITLE. iat 


sitions are sometimes interchangeably used, it may be well to point 
out a reason why the preposition in was properly, and therefore it 
is presumed designedly used in this title instead of the preposition 
by. Article 9 of the Constitution which was under amendment in 
1901, contained this provision as to its alteration. “This Consti- 
tution shall be unalterable, unless in General Convention, by the 
Church, in a majority of the Dioceses which may have adopted the 
same.” It is plain therefore that the language used in the title is, 
as far as it goes, simply accurate; and that the action denoted was 
action taken in General Convention by the body which adopted the 
Constitution, and by its terms established General Convention, and 
prescribed a rule of action for it. It is true that what was Article 
9 of the Constitution which was under amendment in 1901, no 
longer, in its altered guise as Article XI., in the amendment of 
that year, bears, so far as its language is concerned, the same testi- 
mony to the propriety of the use, in the still retained title, of the 
preposition in. The process of amendment is in some respects 
changed as will be noted in its proper place; and amendatory action 
is directed to be, with specified qualifications, by General Conven- 
tion. But that General Convention is an agent, whose principal 
acts either in it, or by means of a process directed to be taken by it, 
is sufficiently plain in both phases of the Article cited. The lan- 
guage of the title therefore, taken in connection with the language 
of the Constitution with respect to its own amendment, shows that 
the source of the authority imposing it is a body which by the Con- 
stitution has created General Convention and prescribed a rule of 
action for it. 

Now as to what that body is, there are as has been intimated, 
two theories ; one being, to put the matter as briefly as possible, that 
that body is the Protestant Episcopal Church in the United States ; 
and the other, that it is the association or union of constituent or 
component parts of that Church. For it is not to be doubted that 
the advocates of each theory have in mind the same Church; and 
that the real issue between them is whether the source of the action 
taken is to be found in that Church as a whole, or in the mutual 
consent and agreement of integral parts of which it is composed. 
Of this issue, more hereafter: but meantime it is to be noted that 


12 INTRODUCTION. 


there is an indication of evidence in favor of the former branch of 
the alternative, contained in the title of the Constitution as 
adopted, October, 1789. 

The title then prefixed to the Instrument was, “The Constitu- 
tion of the Protestant Episcopal Church in the United States of 
America.” It is to be remembered, however, that although it is 
proper to consider the bearing of the title upon the subject under 
discussion, yet the facts shown by the language of the Instrument 
itself must be admitted in explanation of the language of the title. 
The title must at any rate be understood in such a way as to make 
it consistent with the facts evidenced by the Instrument. And al- 
though the title at this time describes the Instrument as the Con- 
stitution of the Protestant Episcopal Church, yet the question is 
still open as to the sense in which these words are there used: 
whether with reference to the whole of that Church in the United 
States which was commonly understood to be denoted by the terms 
Protestant Episcopal, or with reference to such component parts of 
the Church so denoted as were under that Instrument associated in 
a common work. The fact disclosed by Article 5 is that the 
Church so denoted was recognized as existing in States not then - 
represented, and having not yet acceded to the Constitution. 
That Instrument must therefore be understood to be the Con- 
stitution of the Protestant Episcopal Church in such States only as 
were then represented and acceding. In other words, the Protes- 
tant Episcopal Church of which this Instrument was said to be the 
Constitution, was the Protestant Episcopal Church associating and 
acting in certain of its component parts over which the authority 
of the Constitution extended, and not the Church as a whole, which 
included other integral parts over which the Constitution had as 
yet no authority. The fact disclosed in Article 1, is that this 
Church in a majority of theStates adopting the Constitution shall 
be represented in order to a quorum of General Convention, the 
Church in each of such States being by Article 2, entitled to repre- 
sentation. By Article 8, the Book of Common Prayer is ordered to 
be used in the Protestant Episcopal Church in those States which 
shall have adopted the Constitution, no authority being asserted 
over the Protestant Episcopal Church in the States where it had 


ANALYSIS OF CHURCH. 13 


not been adopted. And by Article 9, provision is made for the 
alteration of the Constitution by the Church in a majority of the 
States which may have adopted it. The facts thus disclosed in 
the body of the Instrument certainly are not consistent with the 
idea that the title uses the term Protestant Episcopal Church as 
descriptive of that Church as a whole; and the title of 1789 must 
therefore be understood as denoting that Church as it existed in 
such of its component parts as were then associating under its Con- 
stitution. It is equally obvious that “the Church”’ referred to in the 
note at the foot of the Instrument, giving the date of its adoption, 
(whatever may be the evidential value of that note) is the same 
Church as that denoted in the body of the Instrument; that is to 
say, the Protestant Episcopal Church in such of its component 
parts as were then associating: and the phrase “General Convention 
of the Bishops, Clergy and Laity of the Church,” can mean no more, 
and no other, than General Convention of the Bishops, Clergy and 
Laity representing the component parts in which that Church was 
associated. ; 
The difference between action taken by the Church as a whole, 
and action taken by mutual consent of integral parts of which it is 
composed, may seem to those who are uninformed as to the system 
of the Church to be inappreciable: but it is real, and not without 
important consequences in its application. 'The Church as a whole 
is composed of its ministry and people; and the Church as a whole 
in any particular region, is composed of its ministry and people in 
that region. Using the word Church in the only sense in which 
it is here applicable, as meaning an Episcopal Church, or one liv- 
ing under the regimen of Bishops, the Church as a whole in any 
country is composed of its Bishops, Clergy and Laity in that coun- 
try. But the Church as a whole in any country is upon analysis 
resolvable into certain integral parts of which it is composed. And 
these integral parts are not respectively, the Bishops, Clergy and 
Laity of the Church; for this would be no analysis, but a mere 
division into sections, each of which would be devoid of life with- 
out the others, and neither of which therefore could be properly an 
integral part; since such part must be the simplest form of the 
same kind with the whole; the single element which, in combina- 


14 INTRODUCTION. 


tion with other like elements, constitutes the larger and more com- 
plex being of the same kind. This elementary or integral part of 
the Church is the Diocese; for in that only exists the whole Church 
in model or element, possessing the threefold order of the ministry 
essential to the Episcopal idea of a Church, united with the Laity 
in the Faith and Sacraments of Christ. The single Congregation 
is not, on Episcopal principles, such integral part since it is not of 
the same kind; not having, as such Congregation, the combinatior 
of the threefold order of the Clergy with the Laity which is char- 
acteristic of the whole. The Province, or association or group of 
Dioceses is not such integral part, because it is not the simplest 
form of the kind under analysis. 

The issue then, with this explanation, is whether the action 
taken in General Convention in respect to the Constitution is action 
of the Church as a whole by its Bishops, Clergy and Laity operating 
en masse, or action taken by the several Dioceses of which it is 
composed, and in which it exists. That in the time of the original 
adoption, the unit or integral part was the Church in each State; 
that such unit was in effect a Diocese, either actually possessed of 
a Bishop, or in process of procuring what it ultimately possessed 
in this particular; and that the Dioceses now hold the same relation 
to the system which was then held by the Churches in the States, 
are historical details which need only to be mentioned, and do not 
call, in this place at least, for elaboration. 

But since it is impracticable that the Church as a whole should 
act by all the Bishops, all the Clergy, and all the Laity of which it 
is composed, and yet the consent of all to action of the whole, is to 
be assumed in order to its validity; it is manifest that such consent 
can only be given, and such action only taken, representatively, that 
is by representatives, or agents, or deputies duly authorized to ex- 
press the required consent of the whole. And since it is equally 
impracticable that all the integral parts of which the Church is 
composed should as one body act all together at one time, and yet 
the concurrence of all is to be assumed as essential to the validity 
of their common action, it is equally manifest that such concur- 
rence must be reached, and such action taken, representatively, that 
is by representatives, or agents, or deputies duly authorized to ex- 


ISSUE STATED: DIOCESAN CONSTITUENCY. 15 


press the joint will of all: such expression being, asin all cases of 
deliberative and representative association, given by the major part 
of the assembly in accordance with its previously established rules, 
and the consent of such prescribed majority standing, by the agree- 
ment of all, for the act and concurrence of the whole. It follows 
therefore, that the real question at issue, however it may be 
phrased, is as to the nature of the representation which character- 
izes the ecclesiastical system of which the Constitution is the basis, 
and General Convention the exponent; and when it is enquired 
whether that body which acts in General Convention imposing a 
Constitution upon itself, is the Church, or the Association of Dio- 
ceses which are its integral parts; what is really needed is an 
answer to the question, what is the constituency in General Con- 
vention? This statement of the issue goes far to the settlement 
of it; and seems to explain allusions in the Constitution to that 
body which, acting in General Convention, has established it. 

For since the Constitution makes distinct provision for the 
representation in General Convention of the Church in the Diocese ; 
and makes provision for the representation of the Clerical Order, 
and the Lay Order, not at all as they are parts of the Church as 
a whole, but only as they are parts of the Church in the Diocese, it 
is manifest, so far certainly as concerns one House of General Con- 
vention, that the Church in the Diocese is the constituency of each 
representation ; and therefore that the body represented and acting 
in General Convention, is the association of all the constituencies so 
represented. And although the Constitution does not specifically 
provide for the representation of the Church in the Diocese by its 
Bishop in the other House of General Convention; nor, of course, 
for his special election to a representative position in that House 
at any session of General Convention; yet that is apparently be- 
cause he has been elected once for all to that function among others 
when chosen by the Diocese to be its Bishop ; and holds that position 
as Bishop of that Diocese, and not as a Bishop at large: so that the 
Church in that Diocese is in fact and necessarily represented in 
that House by that Bishop. That it is by the amended Constitution 
now provided that other Bishops are to be members of that House 
beside those who are Bishops of the Dioceses represented as such 


16 INTRODUCTION, 


in General Convention, may have an important bearing upon the 
equality of the representation of those Dioceses in that House, and 
upon the balance of the two Houses in their joint deliberative ac- 
tion, as will be considered in the proper place; but it has no bearing 
upon the fact that the Diocese is represented as such in both 
Houses, since no mere addition to a system complete without it, 
can fairly be regarded as other than an exception allowed for special 
reasons. Such provision proves indeed that the Constitution per- 
mits a Diocese to have a double vote in the House of Bishops under 
the temporary and exceptional circumstances of its Bishop having a 
Coadjutor, or resigning his jurisdiction, which involves his having 
a successor in the Diocese and an associate in the House; and fur- 
ther that certain other Bishops, who have what is called Missionary 
jurisdiction, are members of the Episcopal House of General Con- 
vention as well as Diocesan Bishops; although the Clergy and Laity 
over whom they preside, not being yet organized into Dioceses, have 
no constitutional representation in the other House of that body. 
The wisdom or unwisdom of these permissions is not here under 
consideration. The point is that they cover exceptional cases, all 
more or less temporary, and some clearly external to, and dependent 
upon, the system, and not essentially a part of it; and therefore do 
not hinder the conclusion that the thing represented under the Con- 
stitution is the Church in the Dioceses, and that the Constitution 
is the Constitution of the Association of those Dioceses. 

If this view is correct, it need not be pointed out that the view 
which regards the Church as such as imposing upon itself a Con- 
stitution is incorrect. But it may be worth while to point out that 
this consequence obviates certain inconveniences which have been 
felt by some who have regarded the Church in this country as the 
imposer upon itself of a Constitution. By these it has been ob- 
jected that the Church, having already a Constitution imposed upon 
it by its Divine Founder, has no need of any other, and indeed can 
have no other in any proper sense of the word; but can only put 
forth in the way of canonical legislation such rules as may be 
needed for the carrying into effect of its original Constitution. 
Hence it has been argued that that which claims to be a Constitu- 
tion is not really such, but only in effect a Canon; and that even 


CONSTITUTION PROPER TO ASSOCIATION OF INTEGERS. 17 


if the title were not a misnomer, yet the thing itself is an imperti- 
nence, or at best a makeshift attributable to the exigencies of the 
time of its origin; and, if possibly justifiable under those exigen- 
cies, certainly not fit to be continued a moment longer than those 
exigencies may require. 

Of course such arguments, in assuming the Constitution to be 
equally with Canons subject to the power of General Convention, 
quite ignore the intrinsic political impropriety (to use no stronger 
term) of leaving to the same body the power to legislate, and the 
power to set aside the rule and limit of its own legislation, thus 
making it practically arbitrary and irresponsible. But apart from 
this consideration, it may be admitted that the arguments rest upon 
a truth. For viewing the Church as a Spiritual Society of Divine 
establishment, and as being in any place the visible representative 
of the Catholic Church of Christ’s foundation, there is not the 
slightest need that it should make a Constitution for itself, and 
moreover it is in fact beyond its power so todo. Laws it may make 
for its own members: but these must be in application of, and in 
conformity with, the Constitution already imposed upon it. And 
as certain extremists have characterized the Constitution of the 
United States as a magnificent device for the prevention of the 
people from governing themselves, so the Ecclesiastical Constitution 
is perhaps naturally regarded, from the point of view described, as 
some kind of a device to prevent the Church from exercising those 
powers which are involved in the Charter of its own being. 

But when we come to consider the case of an association be- 
tween integral parts of the Church for the establishment of a com- 
mon bond of union between them, and the recognition of certain 
fundamental principles of administration of their common con- 
cerns, the inconveniences just indicated do not appear. The 
Church existing in all such parts still applies to its own needs the 
principles of its original Constitution as a Spiritual Society; and 
each integral part, subject to its responsibility to the author of that 
Constitution, is independent on all others in such application. 
And if neighborhood and other providential circumstances, make 
it desirable that several of such parts should associate themselves 


ue 


18 INTRODUCTION. 


together for the better fulfilment of their common work, there is 
no reason why such association should not take place, and no reason 
why the principles on which it is to operate should not be embodied 
in a written Instrument, which is properly called a Constitution, 
as being the organic law of such Association. 

Nor is there any reason why the word Church should not be 
applied, as it is in this Constitution, to denote the authority by 
which it is established; even though that authority be understood 
to be not strictly speaking, the Spiritual Society of Christ’s founda- 
tion, but the association of integral parts of that Society for the 
better fulfilment of their common duty in the discharge of that 
portion of its work which has been allotted to them. But inas- 
much as the word Church is used in different senses, it is expedient 
to discriminate by qualifying terms: and hence the authority which 
speaks in the Constitution describes itself ordinarily as “ this 
Church,” meaning apparently this association which is now acting 
in the establishment of its own organic law; and on three occasions 
as “the Church,” a phrase which appears to be used as equivalent 
to “this Church,” and te avoid repetition. The phrases “A Protes- 
tant Episcopal Church,” and “the Protestant Episcopal Church” 
are also each used once. 

Circumstances, it may be observed, have often required that 
in the use of the word Church, the qualifying terms necessary to a 
due discrimination, should be composed not only of articles and 
demonstrative pronouns, but sometimes also of other parts of 
speech. The Church being ONE in purpose and principle, and or- 
iginally in fact also, needs, abstractly speaking no qualifying terms 
of description. Itis simply the Church. But in its extension, and 
especially in its divisions, it comes under certain conditions and 
circumstances ; and from these conditions and circumstances quali- 
fying terms have arisen. At first different parts of the Church 
were distinguished simply by the places which they respectively 
occupied ; as the Church in or of certain cities, Jerusalem, Antioch, 
Alexandria, Rome—as the case might be; and later with respect to 
regions of a more extended and national character, by the names 
of such regions or countries, or the people inhabiting them. And 
since in process of time differences have arisen, resulting in schisms, 
it is conceivable that a body which claimed to be the historic and 


QUALIFYING TERMS FOR IDENTIFICATION. 19 


authorized exponent of the one original Church in any place or 
country, might feel called upon to use such qualifying terms as 
would particularly designate its own position in respect to certain 
conspicuous departures from original truth. More especially is 
this conceivable in respect to a Church situated in a country, the 
civil conditions of which precluded the possibility of identifying it 
simply by associating it with the name of that country. This is the 
conception which we find realized in the case of the Church in this 
country upon the recognition of the Independence of the States 
after the Revolution. Before the Revolution the Church was 
naturally known as the Church of England in the Colonies. But 
after the Revolution, although the same Church, it could not be 
called, with any propriety, the Church of England in the respec- 
tive States, nor in the Federal Union of those States; nor, with any 
approach to precision, merely the Church in or of such political 
entities. And so, somehow, but apparently by gradual usage 
rather than by formal act of authority, that Church which had been 
the Church of England in the Colonies, came to be distinguished 
by the qualifying terms Protestant and Episcopal, which were ad- 
jectives commonly supposed at that time to express certain qualities 
eminently possessed by the Church of England, as well as by itself 
in its relations to other ecclesiastical bodies in this country; and, 
as adjectives, these terms have equal qualifying force with other 
adjectives, such as Catholic, English or Roman. 

Whether these terms were at first apphed with wisdom, or with 
due regard to euphony, and the convenience or sensibilities of suc- 
ceeding generations is, fortunately, not under consideration here. 
The point is that they are terms of description used for identify- 
ing the body to which they are applied, and that they are equally 
sufficient for identification whether they be applied to the Church 
as it existed before the adoption of the Ecclesiastical Constitution, 
or after such adoption: and when the Constitution uses the phrase 
“Protestant Episcopal Church,” it appears from the connection in 
which the words occur, to have in view the body so identified, or 
characteristics of it which the context indicates. 

The conclusions to which the foregoing discussion points are, 
first, that the Instrument under consideration is in the proper 


20 INTRODUCTION. 


sense a Constitution; that is to say not the result of the exercise of 
legislative power, but the organic law which a body of competent 
jurisdiction has imposed upon itself and its constituted agents, for 
the regulation of legislative and other functions incident to the ad- 
ministration of government in it; and secondly, that the body so 
acting in the imposition of this Constitution is the association of 
such integral parts of the Church within the civil jurisdiction of 
the United States, as are represented in that association, and have 
signified their union with it by acceding to its Constitution: and 
these conclusions are respectfully submitted as stating principles 
proper to be applied to the construction of this Instrument; and as 
explanatory of its provisions upon a consistent theory demonstrably 
conformable to the facts of its establishment. 

That the Constitution and the powers conferred by it, have 
always been construed by the consistent application of this theory, 
or for that matter of any other theory, is a different 
proposition. Under any aspect of it and its obligation, 
a Constitution of human imposition is always the result of the . 
agreement of men of different minds—a combination of variant, if 
not opposing, interests and ideas; and is therefore always and 
necessarily the result to some extent of compromise, whereby a cer- 
tain basis of common action is attained among those who have 
different ideas as to the nature of the authority under which they 
act, or which they seek to impose, and as to the means proper to 
the exercise of that authority. It is probably for this reason that 
a Constitution is so generally regarded as an important con- 
servator of liberty, since it furnishes a mode of living between men 
of different conceptions as to their own rights and the rights of 
others, and secures each one from the tyranny of overbearing ap- 
plication to him of the ideas and opinions of others; seeking to 
preserve this freedom by the settlement of certain just limits which, 
however men may think and feel, they must observe for the com- 
mon good. But although the basis of common action continues to 
be recognized, yet the variance of thought also continues; and 
naturally manifests itself in corresponding constructions of that 
basis, or in efforts to modify it in accordance with such construc- 
tions. And so it comes to pass as this variance works sometimes in 


OPPOSING IDEAS AS TO NATURE OF SYSTEM. 21 


one direction, and sometimes in another, the prevailing views of a 
Constitution and of the system for which it stands, fluctuate, and 
are found sometimes on one side of an issue and sometimes on the 
other, and the Instrument itself often comes to bear traces of the 
influence of one view or the other. 

So it has fared with this Ecclesiastical Constitution; the cur- 
rent setting at different times more or less strongly in the direction 
of one or other opposing conceptions of the nature of the system 
for which the Constitution stands. On one side is the idea that 
the system is to be honestly regarded and fearlessly carried out as 
a real representative system based on the federal consent of its 
Diocesan constituencies, wherein the Bishops, Clergy and Laity 
comprising the Church are to speak and act (so far as the system 
is concerned) in consequence of and by virtue of their connection 
with those Diocesan constituencies. On the other side is the idea 
that the form of representation, in which the Bishops have no part, 
is merely assumed for convenience in the selection of certain 
Clergymen and Laymen who, untrammeled by the expressed will 
of any constituency may, with the concurrence of the Bishops, im- 
pose such laws as they conceive best for the Church; and whose con- 
nection with the Dioceses is a sort of legal fiction, without real 
significance, involving no responsibility, and needing nothing so 
much as reform—unless it be removal. 

It need not surprise us, therefore, if we find in our examina- 
tion of the Constitution, that neither it, nor the legislative action 
of General Convention, is entirely without trace of the influence 
of these different conceptions of the nature of the system. 


ARTICLE I. 
GENERAL CONVENTION: PRESIDING BISHOP. 


The Constitution as amended in 1901, consists of eleven 
articles designated by Roman numbers. Previously, the Constitu- 
tion consisted of ten articles numbered in the Arabic character. 
This is noted to avoid confusion in references; as an article of the 
present Constitution, the second for example, would be cited as 
Article II., while a reference to Article 2, would indicate the 
second article of the previous Constitution. 

Article I., of the Constitution as it now is, consists of six sec- 
tions ; provisions of which not new are taken from Articles 1, 2 and 
3, of the old Constitution. 

The provisions of Article I., relate (1) to General Convention ; 
and (2) to the office of Presiding Bishop of the Church. 

(1) As to General Convention, the article (a) establishes it, and 
defines its composition; (b) prescribes the nature and mode of its 
action ; and (c) indicates the conditions under which it is to act. 

(a). The present Article I, provides that there shall be a 
General Convention; (Art. 1) and that it shall be composed of the 
House of Bishops (Art. 3), and of the House of Deputies (Art. 2), 
consisting of not more than four Presbyters canonically resident, 
and four laymen communicants having domicile within each Dio- 
cese in which the Church is entitled to representation; (Art 2), 
such clerical and lay deputies being chosen in the manner pre- 
scribed by the Convention of the Diocese which they represent 
(Art. 2): 

What is new in this connection is the extension by Section 
2 of the membership of the House of Bishops; and the pro- 
vision by Section 4, for the reduction by Canon of the representa- 
tion in the House of Deputies. These changes are both of great 
importance and deserve serious attention. It will perhaps be more 
convenient to consider first the addition made in Section 4, and 
afterwards the new matter presented in Section 2. 


23 


24 ARTICLE I. GENERAL CONVENTION : PRESIDING BISHOP. 


Section 4 of Article I., contains the following provision: 
“but the General Convention by Canon may reduce the representa- 
tion to not fewer than two Deputies in each order.” 

The motive of this amendment is plain. It recognizes the fact 
that the representation of each Diocese by four clergymen and four 
laymen, involves, as the number of Dioceses is increased by 
division, a corresponding increase in the membership of the House 
which would in time make it too unwieldy for effective operation: 
and it applies a remedy sufficient to meet the practical difficulty, 
temporarily at least, when it shall have become necessary to meet 
it, without further amendment of the Constitution. The General 
Convention may by Canon reduce the representation of each Diocese 
from eight to four, when that action is considered desirable. The 
principle of the representation of course remains unchanged. The 
constituency is the same, and the two fold representation of that 
constituency remains unimpaired. 

Whether it would not have been well to take the opportunity 
afforded by so complete a remodelling of the Constitution as has 
taken place, to remodel also the plan of Diocesan representation 
without departing from the principle that the Diocese is the ulti- 
mate unit of representation; and by what mode it is possible to 
effect such action, are questions as to which men may differ, and 
which may perhaps be regarded as speculative. But although the 
necessity for determining them does not for the present exist, yet it 
is by no means improbable that they may by and bye press for an 
answer in some practical way. The problem of preserving the 
common and equal representation of all constituent parts, without 
an indefinite and unmanageable increase of the representative body, 
is one which it would seem neccessary to solve, and solve constitu- 
tionally, if the constitutional system is to survive. Perhaps the 
time is not yet ripe for the decision of the serious questions in- 
volved. At any rate it is plain that the present amendment has 
contributed nothing to that end, but by a temporary arrangement 
has postponed the problem instead of solving it. The subject 
therefore must continue to engage the attention of the thoughtful ; 
and it is worth while to observe that in connection with the estab- 
lishment of Provinces within the National system, for which the 


REPRESENTATION MEDIATE OR IMMEDIATE. 25 


foundation is laid in the amended Constitution, one of the most 
important and indeed fundamental questions in the whole subject 
‘suggests itself; the question, namely, whether it is essential to the 
preservation of the principle of the equal representation of co- 
ordinate constituent parts, that such representation in the com- 
mon government should be direct and immediate; or whether it 
may not be indirect and mediate, without impairing its equality 
and effectiveness, and without loss of substantial right of self-gov- 
ernment in the constituent parts as to all matters not affecting the 
common interest. To state the question less abstractly, it is whether 
the Dioceses may not be represented directly and immediately in 
the Provincial Council, by whatever name called; and mediately in 
General Convention, if that name be retained, by representation 
from the Provincial Assembly. Or, still more concretely, by way of 
example, whether all the Dioceses in a State might not compose a 
Province, and be directly represented in a body common to all the 
Dioceses in that State; while representatives from that body would 
be sent to General Convention retaining constitutional powers of 
the same kind as at present. The ultimate unit in such representa- 
tive system would remain, as of necessity, the Diocese. Its repre- 
sentatives would unite with others in the choice of representatives 
of the Provincial group, who would thus represent all the con- 
stituent parts of the group in the common government with others 
of like capacity from the other groups: whereby the general repre- 
sentative body would be kept within reasonable dimensions. and its 
attention confined to matters of really common interest. Whether 
such result be approached by the mode given in this illustration 
which would be but a return to the original system of representa- 
tion of the Church in the States with adaptation to the changed 
circumstances of later times, and would thus be strong in the force 
of traditional, historical, political and legal associations; or by 
some other mode conceived to be free from the objections attaching 
to that, though probably not without others peculiarly its own; 
the question which has suggested itself would require first to be de- 
cided before the mode could be determined. If, however, the 
question is ever decided in favour of the indirect and mediate repre- 
sentation which has been described, it will involve the previous 


26 ARTICLE I. GENERAL CONVENTION : PRESIDING BISHOP. 


abandonment of certain prejudices which would seem in recent 
years to have gained so much in strength as to have become in a 
manner axiomatic, though when examined in the light of the prin- 
ciples of representative government they appear to be anything 
but self evident. One of these is that the more representatives a 
constituency has, the better it is represented. Another is that 
representatives ought not to be instructed by their constituencies, 
and ought not to be bound by instructions if received ; but that they 
are endowed somehow and from somewhere, with the right to take 
these constituencies under their protection, and do what they think 
is good for them. And another is, that there is something about 
the office of a Bishop, or about his person as affected by his office, 
which precludes the possibility of his possessing any manner of 
capacity for representing or being represented: which last reflection 
is a reminder that we leave the region of speculative questions, and 
return to the enquiry as to facts presented by the amended Consti- 
tution; and consider in particular, the new matter introduced by 
Section 2 of Article I. 2 

The first sentence of that section, which is all that we are at 
present concerned with, reads as follows: 

“Every Bishop of this Church having jurisdiction, every 
Bishop Coadjutor, and every Bishop who by reason of advanced age 
and bodily infirmity arising therefrom has resigned his jurisdiction 
shall have a seat and a vote in the House of Bishops.”* 

Under the provisions of the former Article 2 (cf. the first and 
last sentences), “the Church in each Diocese,” having adopted the 
Constitution, was entitled to a certain clerical and lay representa- 
tion; and by Article 3, “The Bishops of this Church,” that is the 
Bishops of the Church represented as immediately before specified, 
“when there shall be three or more, shall, whenever General Con- 
ventions are held, form a separate House,” which is designated 
throughout the Instrument as the House of Bishops. The House 
of Bishops then, under that form of the Constitution, was com- 


* An amendment has been proposed, to be acted on in 1904, changing the 
third clause of the above sentence so as to read, ‘‘ Every Bishop who by reason 
of advanced age or bodily infirmity has resigned his jurisdiction.” (Journal of 
1901, p. 571.) 


RELATION OF COMMON GOVERNMENT TO MISSIONS. rate 


posed of the Bishops of the Dioceses which had acceded to, or 
adopted the Constitution, and of no others. There were indeed no 
others when the Constitution was adopted, nor for years afterwards. 
Even when occasion arose for Coadjutor or Assistant Bishops, they 
were still Bishops belonging to Dioceses (or States, with which 
Dioceses were then coterminous) which had acceded to the Con- 
stitution, being thus constituent members of the Association which 
had established the Constitution: and their case seems to have 
come at least within the letter of the Constitution; in so far as 
that Article 4, speaks of “the Bishop or Bishops in every Diocese,” 
implying that there might be special circumstances which would 
make it expedient that there should be more than one Bishop in a 
Diocese, but providing explicitly that in any case he should be 
chosen by the Convention of the Diocese or according to its will. 

* Soon, however, this Church which, under common govern- 
ment, existed only in association of its component parts under the 
Constitution to which they had respectively acceded, began to 
reckon with itself in regard to its responsibility for its members, or 
those who were of its Communion, or of the Communion of no 
Christian body, who dwelt or sojourned beyond the limits of those 
States wherein these component parts were located; and in recogni- 
tion of a responsibility which as a body it possessed, it proceeded to 
make provision for them that, in this sense, were without. It did 
this in several ways: first, by tendering to those who were in States 
not represented, the privilege of being represented with them in the 
Common Union; next, by missions into outlying districts of this 
country, and later also, into foreign countries; and, in much later 
times, by provision for its own members sojourning in foreign 
lands, but not received to the Communion of the Churches therein 
existing. In the first of these cases, no care was undertaken, and no 
authority was asserted; only the earnest desire for the extension of 
the Ecclesiastical Union was expressed.* The lastof these cases need 
not here be particularly considered, because the Episcopal oversight 
of foreign chapels is thus far devolved upon one of the home Bish- 
ops, and the See of the Sojourners beyond Seas has not yet been 


* Cf. terms of appointment of Committee to address the Church in certain 
districts. 1808. Bioren’s Journals, p. 252. 


28 ARTICLE I. GENERAL CONVENTION : PRESIDING BISHOP. 


established with a Bishop of its own to have a seat and a vote in 
the House of Bishops. In the other case, that is the case of mis- 
sions, care was undertaken, and authority exercised and admitted: 
and those who were in these missions under the teaching and in the 
Communion of the Church were in the position which churchmen 

in the colonies had occupied with reference to the Church of Eng- 
land. Whatever of organization and association they might have 

among themselves, they looked, for all necessary connection with 
the Episcopate, to the Episcopate of the Church organized under 
the Constitution. They were not component parts of that organiza- 
tion, but members of the same Communion in outlying or foreign 
regions, dependent for the means of grace upon the Ministry and 
Sacraments provided by that organization. In other words, in- 
stead of being component parts of the organization, they were de- 
-pendencies upon it. And for many years, the whole of the work in 
such regions, domestic or foreign, was carried on only by Presby- 
ters, who had their orders and mission from the Episcopate which 
was a part of the organization. In due time it was determined to 
carry on this work by Bishops sent out to lead, oversee and guide it. 
But the work did not therefore cease to be the mission work of the 
Church as associated under the Constitution, nor to be a dependency 
upon it as distinguished from a component part of it. A roving 
commission to supply the things that were wanting, and strengthen 
that which was ready to die, throughout the immense field of the 
entire Northwest; another to the vast region of the Southwest; then 
the settlement within the, comparatively speaking, smaller limits 
of distinct Territories belonging to the Civil Union; then the 
adoption of a similar plan with reference to missions in various 
foreign countries; all these were evidences of the joint care of the 
Church as an organized body for those who were dependent upon it. 
The whole mission in any place was established and cared for 

by that body, and the Bishop who conducted it was not chosen by 
the people over whom he presided but was appointed and sent to 
those people by the common authority of that body, exercised by 
General Convention; and the work was chiefly if not wholly sup- 
ported by the Missionary Society chartered by Canon of General 
Convention. All of this provision was eminently wise; and so long 


INCONSISTENCY IN REPRESENTATION, 29 


as it should continue to be recognized as made for the benefit of 
dependencies upon the common authority from which it proceeded, 
nothing but good could come of it: good to the outlying and foreign 
regions wherein the Gospel was freely preached, and their inhabi- 
tants guided in the way of right faith and right living; good to 
the Church associated, not only by reason of the benefit to itself in 
the strengthening of missionary zeal and enterprise, but also be- 
cause the seed was being sown which should grow by degrees into 
Churches which in the time to come would be part and parcel of 
the Association—which would thus be more widely extended, and 
infinitely strengthened in its own orderly way. 

That this distinction has not been consistently adhered to is 
matter of profound regret. That it has not been entirely lost sight 
of, is evident from the fact that the Missionary Districts, either 
domestic or foreign, have never been regarded as entitled to repre- 
sentation in the House of Deputies. When they have been  or- 
ganized into Dioceses, and have as such acceded to the Constitution, 
they have of course, under it, become members of the Union; and 
have thenceforth been entitled to representation as Dioceses. But 
as Missionary Districts they have not been represented in the con- 
stitutional sense of that word; although they have been permitted 
to send delegates who were allowed to speak in reference to their 
mission, but not to vote as Deputies. The consistent adherence to 
the idea of the distinction between the constituent parts of the 
organized body, and fields of missionary work dependent upon that 
body, would have required that the same principle be adopted in 
regard to membership in the House of Bishops, as had been con- 
sistently acted on in the House of Deputies. The Presbyters who 
wrought so manfully in their missions, and faithful laymen who 
wrought with them, were not thought of as having rights of mem- 
bership in the House of Clerical and Lay Deputies; and neither 
should the Bishops of those missions, by parity of reason, be thought 
of as members of the House of Bishops. They might well and 
justly have been received in the House of Bishops to speak for their 
own missions, but not to vote as members of the House upon ques- 
tions pertaining not to their missions, but to the regulation of that 
body upon which their missions were dependencies. But this con- 


30 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


sideration, conceived upon no abstract imagination, and certainly— 
it seems unnecessary to say, but it is a pleasure to say it—upon no 
idea of the personal unfitness of these Bishops to be members of that 
House, but upon the mere principle of common justice, has ap- 
parently not been allowed its due weight in the administration of the 
system. In the Canon by which General Convention has provided 
for the election of domestic and foreign missionary Bishops by the 
House of Deputies upon the nomination of the House of Bishops, 
it is declared that each of such Bishops shall be entitled to a seat 
in the House of Bishops. (Digest, Title I., Canon 19, Sec. vi, [8]. 
Sec. vii, [2].) The expression is not quite conclusive as to the 
question whether the right to a seat involves the right to a vote; 
and as the House of Bishops sits with closed doors, one who is not 
a member of that House may be excused for not knowing what, as a 
matter of fact, the practice has been in the exercise of the right con- 
ferred by Canon; and thus for some uncertainty as to what this 
provision of the Canon meant. If it meant only what it said. then 
the same principle may be understood to have been applied in the 
House of Bishops as has always been applied in the House of Depu- 
ties, and the Missionary Bishop has been in the House without the 
right to vote; although with such privileges as the rules of the 
House might confer either as matter of courtesy, or from a natural 
desire for information as to his mission. If the phrase meant more 
than it expressly said, and purported to confer upon such Bishop 
the right to vote; then the least that can be said is, that it went 
beyond the constitutional power of General Convention, which un- 
dertook to confer a right which it had not to give. For, whatever 
may be said as to the general nature of powers conferred by the 
Constitution, no created body ever yet had the right to transcend 
the law of its own organism imposed by the will of its Creator: 
and to unsettle the balance of the functions brought into operation 
by that organic law, is more than to transcend—it is to contra- 
dict it. 

But whatever ambiguity may possibly be detected in the canon- 
ical phrase, none seems to be discoverable in the language in which 
the amended Constitution provides for the composition of the 
House of Bishops. 


JURISDICTION : CHANGE IN EPISCOPAL HOUSE. 31 


“Hyvery Bishop of this Church having jurisdiction,” is a phrase 
which plainly includes all the Bishops of this Church, except those 
who have resigned or have been deprived of jurisdiction. Except, 
indeed, for abundance of caution, there would seem to have been no 
reason for the solitary specification of the Bishop Coadjutor, since 
he certainly is not without jurisdiction. Jurisdiction is, properly 
speaking, the right to exercise the power of order; though popu- 
larly the word is used to denote the place where that right is ex- 
ercised ; and though the Coadjutor has generally no territory of his 
own (though sometimes by particular assignment he may have that 
too), yet it is by Canon made a condition precedent to his election 
that the Bishop of the Diocese shall state the duties which he 
thereby assigns to him in view of his election and consecration 
(Title I. Canon 19, See. v) ; so that he certainly receives with his 
consecration the right to exercise his power of order—which is 
jurisdiction. But in his case by particular specification, and in all 
other cases where jurisdiction is possessed, that is to say in the case 
of Diocesan Bishops, and in the case of Missionary Bishops, domes- 
tic or foreign, all Bishops of this Church are entitled by the terms 
of the amendment contained in Section 2, of Article I., to sit and 
vote in the House of Bishops. Where Bishops are without juris- 
diction, which may be either by deprivation or resignation, they do 
not come within this provision, except in the case of resignation on 
the specified ground of infirmity, in which case the seat and vote 
are retained. Missionary Bishops therefore, being consecrated as 
Bishops of this Church, and having their Episcopal field lawfully 
designated through election by the House of Deputies on nomina- 
tion of the House of Bishops specifically for that field, are clearly 
authorized by the amended Constitution to sit and vote in the 
House of Bishops. 

Thus in the course of our comparative study we encounter the 
fact that an addition of membership is provided for the House of 
Bishops by the Constitution, which without that authorization 
would have been contrary to the Constitution, or at least not 
authorized by it. In other words, this provision contains entirely 
new matter; and introduces an element into the administration of 
the common government, which was not, constitutionally speaking, 
previously present. 


32 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


We are not then concerned with the lawfulness of the pro- 
vision; for of course the authority by which the Constitution was 
imposed had the right to alter it; and the alteration having been 
duly made is to be accepted. But we are concerned with the mean- 
ing of the alteration, and with the effect of it: and these points, it 
is presumed, we are permitted to question and discuss, with due 
respect to the authority to which we are bound to defer. The mean- 
ing of the provision, so far as its terms go, is plain enough; but the 
significance of it, or what the alteration was intended to effect, is 
not so plain but that men may differ about it. The one thing, 
however, which ought to be considered quite clear about it, is that 
it cannot be accepted as an alteration of the basis of the constitu- 
tional system, so as to change the character of its constituency. It 
is, indeed, conceivable that the Church as associated under the Con- 
stitution, might in due accordance with its provisions for its own 
amendment so alter it that that constituency might be entirely 
abolished ; and the confession might be made, for instance, that the 
Church so associated had learned by experience the futility of the 
attempt to carry out the principles of constitutional order in the 
working of Church affairs, and therefore threw itself entirely upon 
the inherent rights of the Episcopate, content to accept the law 
for all its actions from that body: but it is inconceivable that any 
change thus revolutionary, either in this or any other direction, 
would be brought about by a mere side ruling on one feature of the 
constitutional system, leaving the rest of the provisions establishing 
that system untouched in any way. It must therefore be under- 
stood that this amendment has no bearing upon the character of 
the constituency of the Union, which remains what it was before. 

But the effect of the alteration upon the administration of the 
system founded on that basis may nevertheless be most important. 
And inasmuch as this amendment touches the exercise of the power 
of determining the expression of the will of the common govern- 
ment, it is legitimate to enquire what effect this new provision has 
upon that expression. 

Without approaching at all the question as to the representa- 
tive character of the Bishops in the House, and for the moment ac- 
cepting the assumption that they sit without regard to their con- 


UNSETTLEMENT OF BALANCE. oo 


nection with the work to which they are specifically chosen or ap- 
pointed, and as Bishops at large, or, if the expression be preferred, 
as Bishops in the Church of God, it must be admitted that the 
system regards the House of Bishops and the House of Deputies as 
co-ordinate members of the common legislature; and that this im- 
plies their equality with one another in the power to determine 
questions before that legislature. Whatever, then, impairs the 
balance of that equality, tends to weaken its salutary influence ; 
possibly even (and possibilities are the proper objects of constitu- 
tional foresight) to destroy it: for if one of two co-ordinate mem- 
bers is enlarged out of proportion to the other, its required majority 
becomes greater, and therefore more difficult to secure in the way 
of concurrence. 

Suppose now, taking small figures for easier illustration, that 
we have twenty Dioceses represented in the House of Deputies, and 
twenty Bishops sitting as Bishops at large, or in the Church of 
God, in the Episcopal House, and that eleven of the Dioceses carry 
a measure in the House of Deputies. There will then be required 
in order to make the measure the act of the Convention, a majority 
of eleven Bishops of the Church of God in the other House. But 
suppose again that there had been six more Bishops of the Church 
of God added to that House on account of their connection with 
missions. That would make the eleven Dioceses in the House of 
Deputies need a concurring majority of fourteen Bishops of the 
Church of God, instead of eleven as before. The difference be- 
tween eleven and fourteen is not very large to be sure; 
but it is the difference between concurrence and _ non-con- 
currence: and that difference is always important, and 
might under some circumstances be very vital indeed. 
The fact is, a departure from principle is always serious; 
and to introduce into a complicated system an element 
which is characteristic of another system, is what no man can 
foresee the end of. If the Bishops wish to sit in Council, and take 
such spiritual and pastoral action as they conceive the Church to 
need, there is nothing to hinder them in that; and nothing, either, 
to hinder their admitting to their Council any number of Bishops, 
domestic or foreign, missionary or titular, and giving to each the 


34 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP 


same right to vote which belongs to all the others, since in such 
Council they are all peers, by virtue of their holding the same office, 
with the same powers, for the same purposes. But the House of 
Bishops, as known to, and established by, the American Ecclesias- 
tical Constitution, is not a Council in the proper sense of that 
word, but a co-ordinate member of the General Convention, recog- 
nized and instituted with powers of government purposely ad- 
justed on terms of equality with the House of Deputies: and to 
provide for its composition, not on that basis, but on the basis of 
the connection of its members with another and exterior system, 
is to strike a note which is out of harmony with the principles on 
which the Constitution is founded. 

It is possible that this inconsistency, even if recognized, may 
be thought of little moment. The tendency of the times is to 
care little for principles, and less for modes, so long as business 
can be done smoothly, and without friction of any kind. And to 
the lovers of lubrication, nothing is so tiresome as the theories and 
proprieties of system-makers, or those who have a remnant of 
conscience for the due observance of systems already made. ‘To all 
such obnoxious persons, the lubricators, if they still retained a 
faith in Purgatory, would begrudge the slightest share in the 
benefit of Indulgences. But even at the peril of the total for- 
feiture of Indulgences or indulgence, it ought to be said here, that 
this matter of the unsettlement of the balance between the two 
Houses is one that touches the very foundation of our American 
Ecclesiastical System. It does so because the principle on which 
the disturbing influence is introduced, ignores the elementary dis- 
tinction between the pastoral and spiritual supremacy of the Bish- 
ops, and the concern which they have in the government of the 
Church as a Society. The visible Church of Christ’s foundation is 
none the less a Society, because it is a Spiritual Society; and as a 
Society it has concerns and interests which are not purely spiritual, 
but partake more or less of the character of those of Civil Societies. 
And admitting that no earthly or civil power can confer, limit, or 
take away the spiritual authority of the Successors of the Apostles, 
it still remains true that their authority over the concerns and 
interests of the Church which are not purely spiritual, is not exclu- 


REPRESENTATIVE EQUALITY THE BASIS OF THE SYSTEM. 35 


sive, nor is it to be exercised apart from the consent of those who 
are with them members of the same body. Nor, probably, except- 
ing of course the Papal System, which has absorbed the temporal 
as well as the spiritual authority into its claim of Universal Su- 
premacy, has there ever been an Episcopal System in which the 
jurisdiction of the Bishops, in so far as it is separable from the 
administration of the power of order, has not been modified in 
its exercise by the will of the body of the Church, or by Christian 
Princes acting as the self-constituted exponent of that will. More 
than this, it seems not extravagant to say that if the body of the 
Church had always had its due influence in its own government 
as to matters not purely spiritual, there would not have been the 
superfluity of unepiscopal societies, which now perplexes the ob- 
server of the Christian world. Be this, however, as it may, it is 
certainly true that the body of the Church in this country found 
itself after the Revolution in a position of advantage almost un- 
dreamt of since the time of Constantine, in which it had oppor- 
tunity to claim its just right, without impairing its dependence for 
the means of grace upon the Episcopate; and undoubtedly it 
availed itself of this opportunity. The discipline of nearly two 
centuries, whereby Providence had seen fit to deny it Bishops of 
its own, fitted it to take steps towards its own organization without 
them ; and thus to secure its just rights without denying—though, 
indeed, it was at first a little careful about admitting—those of the 
Episcopal order; and the attitude of the civil government, which 
refused on any plea whatever to have anything to do with the regu- 
lation of the internal affairs of religious societies, enabled the body 
of the Church to take back into its possession the rights which 
Christian Princes had hitherto assumed to hold in trust for its 
benefit. And the system under which these rights were to be 
administered had, as its very bottom foundation, the principle of 
equality in the administration of common affairs; equality of Bish- 
ops, Clergy and Laity; and equality of Dioceses, as the integral 
parts of the Church to which these orders belonged. So that if 
any one thing more than another is likely to hinder the ends sought 
for in the establishment of our system, it is the introduction into its 
administration of the idea that one House is capable of a prepon- 


36 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


derating influence over the other; especially if that idea carries 
with it the conception that the Bishops are not part of a common 
system of government, but an order separate and apart from it. 
For such reasons as may be inferred from what has now been 
said, it would seem that the balance which has been impaired 
ought to be restored. In what way this can be done is a matter 
which must be referred to the statesmanship of those who are 
called to the councils of the Church. But inasmuch as power 
once acquired is seldom set aside, and inasmuch also as it would be 
extremely invidious, even if it were possible, to remove the addi- 
tions which the Constitution has now authorized to the House of 
Bishops, it is apparent that the remedy must be sought in some 
other way. And as amendments to Constitutions grow out of 
recognized existing needs, it is possible that the way may be opened 
to the restoration of the balance by an addition to the constituencies 
of the House of Deputies. The distinction between Dioceses and 
Missionary Districts under Episcopal oversight (although historic- 
ally easy to be accounted for), is in itself perhaps technical rather 
than substantial. Tyhe dependent character of the missions has 
been brought about by their inability to make provision for them- 
selves; and during this dependence, which in any case is temporary, 
and preparatory, the appointment of their Bishops by General 
Convention naturally takes the place of their election by those 
whom they are to oversee. With that exception they are in effect 
Dioceses, having the same characteristic of the three-fold order of 
the Ministry united in the Faith and Sacraments of Christ. And 
perhaps the time will come when, with due care and circumspec- 
tion the principles of federation can be so applied to them as to 
make them, equally with the Dioceses now so called, component 
parts of the Constitutional Association; by recognizing their 
organization, when it shall have attained a permanent character, 
as Diocesan organization, and admitting them to accede to the Con- 
stitution, and to representation accordingly. One of the indications 
of the turning of the mind of the Church in this direction may 
be seen in an amendment proposed at the Convention of 1901, and 
to be acted on in 1904, which has for its object the gift, to the 
Missionary Districts within the United States, of the Constitutional 


SUGGESTION FOR RESTORATION OF BALANCE. 37 


right to a representation. The proposed amendment is to insert in 
Article I. a section reading as follows: 

“One Clerical and one Lay Deputy chosen by each Missionary 
District of the Church within the boundaries of the United States 
shall have seats in the House of Deputies, subject to all the quali- 
fications and with all the rights of Deputies except the right to vote 
when the vote shall be taken by orders.” (Journal of 1901, pp. 
571, 572.) 

So far as the Church within the boundaries of the United 
States is concerned, if the extent of those boundaries is ever settled, 
that amendment would answer the whole purpose here contended 
for, if a period were put after the word Deputies in the next to the 
last line, and the following words, constituting the exception, were 
stricken out. Whether this change would involve other changes in 
the Constitution, and what those changes ought to be, is matter for 
serious consideration, which this part of the present essay has been 
already too much protracted to permit here. But it seems, at least, 
to be an important move in the right direction. 


After having thus established and defined the composition of 
General Convention, Article I. goes on to indicate (b) the nature 
and mode of its action, and (c) the conditions under which that 
action is to be taken. 

(b) The nature of its action is legislative. “Either House may 
originate and propose legislation.” Sec. 1. The provision of the 
old Constitution was that an act approved by both Houses should 
“have the operation of a law.” (Art. 3.) Both provisions mean, 
and were manifestly intended to mean, the same thing: and taken 
in connection with the fact that all the powers conferred upon 
General Convention by the several Articles of the Constitution (ex- 
cept the last two, which contemplate a different kind of action), 
are of a legislative character, they show that General Convention 
is a legislative body. It has always, moreover, been regarded not 
only as a Legislature in the System, but as the Supreme Legisla- 
ture therein. This inference was inevitable from provisions in- 


33 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


corporated in Article 2, from the beginning, declaring that the 
Church in each Diocese adopting the Constitution shall be bound 
by the duly consummated acts of General Convention, whether 
such Diocese has been actually present by its Deputies in that 
body or not. No such provision, however, appears in the amended 
Constitution. It is here presumed to have been taken for granted 
that, as this supremacy in legislation had been established from 
the beginning of the System, and had always been and still was 
acquiesced in by all the Dioceses, it was not necessary to continue 
the stipulation. But the omission is unfortunate, and is not to be 
commended as a good precedent in Constitution building; although 
it may be taken as evidence of the absence of intent to change some 
features of the system which have been not so plainly indicated in 
the amended as in the previous form of the Constitution. 

Passing from the nature to the mode of action prescribed for 
General Convention, it may be briefly said to be that of joint, or 
concurrent action of its two separate Houses, as under the former 
Articles 2 and 3. Action of either House, without the, concurrence 
of the other, is not action of General Convention. As to the mode 
in which action of either House is taken and expressed, no rule is 
here imposed upon the House of Bishops, though elsewhere in 
certain cases a majority of the House is required. Otherwise this 
House is at liberty to follow its own mode, but is presumed to fol- 
low the usual practice of deliberative bodies, acting, in the absence 
of other rule, by the numerical majority of the members present. 

In respect to the action of the House of Deputies, however, 
the mode is explicitly prescribed, and is substantially the same as 
heretofore (Art. 2), although with different form of ‘expression. 
The third paragraph of Sec. 4, Art. I., provides that on any ques- 
tion, the vote of a majority of the Deputies present shall suffice, 
unless otherwise ordered by this Constitution, or by Canons requir- 
ing more than a majority, or unless the Clerical or Lay representa- 
tion from any Diocese requires that the vote be taken by orders. 
This in the main describes the previous practice, understood to 
be not incompatible with the vote provided for in Art. 2. The 
peculiarity of the vote provided for on the requirement of any 
delegation does not preclude the House from the usual parliamen- 


ANALYSIS OF “VOTE BY ORDERS.” 39 


tary liberty, when that vote is not called for, or not otherwise law- 
fully enjoined. And this peculiarity—which is the distinguishing 
characteristic of the whole system—is carefully marked in the 
Constitution both before and after the amendment. 

It was doubtless designed to be, possibly it is, more plainly 
expressed in the present, than in the fermer version; but neither 
version can be understood to require other than the same kind of 
vote, which is the vote not of a majority of the Clerical representa- 
tives concurring with a majority of the Lay representatives, but the 
vote of a majority of all the Dioceses represented and voting by 
Clergy, concurring with a vote of a majority of all the Dioceses 
represented and voting by Laity. In other words each Diocese has 
two votes; a vote by its Clerical representatives and a vote by its 
Lay representatives; and of all the Dioceses represented in either 
order, there must be a concurrence of the majority of Diocesan 
votes in one order, with the majority of Diocesan votes in the other 
order. The will of the Diocese in its Clerical vote is expressed by 
the numerical majority of its Clerical representatives. Three out 
of the possible four determine the vote in that delegation; two 
out of an actual three determine it; it is, of course, determined by 
the agreement of all, if all agree; if one only is present, his single 
yote is the vote of the Diocese in that order. If a Diocese is not 
represented in that order it does not vote; and if its representatives 
in that order are evenly divided, the Diocese casts no vote in that 
order. And the rule is the same in the case of the Dioceses repre- 
sented by Laity, as in the case of the Dioceses represented by 
Clergy. But if the Diocese votes one way by its Clergy, and another 
way by its Laity, these votes do not cancel or offset each other. 
Each is counted in the number of votes necessary to make a ma- 
jority in each order. The Diocese having two votes may cast the 
Clergy vote in one way and the Lay vote in another, and both 
count. 

This characteristic vote has been popularly called at different 
times the vote by Dioceses, the vote by orders, and the vote by 
Dioceses and orders. In no phase of the Constitution is it formally 
named, although it is referred to in the present one as the “vote by 
orders.” It is now provided that in all cases of this “vote by 


4() ARTICLE I, GENERAL CONVENTION: PRESIDING BISHOP. 


orders,” the two shall vote separately, “each Diocese having one 
vote in the Clerical order, and one in the Lay order; and the con- 
currence of the votes of the two orders, by not less than a majority 
in each order of all the Dioceses represented in that order at the 
time of the vote, shall be necessary to constitute a vote of the 
House.” 

The Constitution before this amendment provided that in all 
questions when required by either representation from any Diocese, 
“each order shall have one vote; and the majority of suffrages by 
Dioceses shall be conclusive in each order, provided such majority 
comprehend a majority of the Dioceses represented in that Order. 
The concurrence of both orders shall be necessary to constitute a 
vote of the House of Deputies.” 'The same phraseology goes all 
the way back to 1789, unchanged except in the particular that upon 
the division of the Church in the State of New York into two 
dioceses in 1838, the word Diocese is substituted for the word 
State, as in other parts of the Constitution. The phraseology is 
no doubt that of the venerable Bishop White, from whom the whole 
scheme of representation appears to have been derived. Compar- 
ing that of 1789 with that of 1901 the only notable difference as 
to the description of the vote is that in the latter year it is called a 
“vote by orders,” whereas in 1789 the majority is described as a 
“majority of suffrages by States.” Probably the form of expres- 
sion in 1789 is accounted for by the fact that in the Draft Con- 
stitutions of 1785 and 1786 (which were not authoritatively 
adopted, but prepared the way for that which was), the provision 
was that there should be a representation of both Clergy and 
Laity in each State, and that “in all questions the said Church in 
each State shall have one vote (1785, ‘but one vote’ 1786), and a 
majority of suffrages shall be conclusive.” It was natural then 
that when the plan of voting by orders had been grafted on to the 
plan of voting by States, which first appears in 1789, the form of 
expression should be that “the majority of suffrages by States 
shall be conclusive in each order,” and that the right to vote by 
orders should be more firmly secured by adding “provided such ma- 
jority comprehend a majority of the States represented in that 
order.” Beyond this variation in expression, however, there is 


VOTE BY ORDERS, NOT NECESSARILY VOTE BY DIOCESES. Al 


absolutely no difference in the manner and effect of the vote 
described. It is the same vote whether it be called a vote by orders, 
or by Dioceses. It is a vote by orders, as those orders are representa- 
tives of Dioceses; it is a vote by Dioceses, as those Dioceses are 
represented by orders. It is in fact what it used to be commonly 
called a vote by Dioceses and orders. 

One thing, however, it is important to note in this connec- 
tion, and that is that although it is necessary for the adoption 
of a measure to have a majority of all Dioceses represented by 
Clergy, concur with a majority of all Dioceses represented by 
Laity, it does not follow that this is the same as the vote of a 
majority of the Dioceses. This is perfectly obvious in the lan- 
guage used, but the distinction is sometimes overlooked. To have 
the vote of the majority of the Dioceses represented, it would be 
necessary that a majority of the Dioceses represented should each 
cast both its votes on the same side, so that each of this majority of 
Dioceses represented would vote both by its Clergy and Laity on 
that side. It is possible that this may be done, although it is no- 
where in the present Constitution required; but it is equally possi- 
ble that it may not be done; and in fact the probabilities are against 
it. And even if it should be done, it could not be effective without 
the concurrence of the other House; and a majority of that House 
acting, would not necessarily consist of the Bishops of that 
majority of Dioceses which had voted solidly in favor of a measure 
in the House of Deputies. So that apprehension of a sectional ma- 
jority of Dioceses controlling a minority of Dioceses in another sec- 
tion; or, indeed, of a majority of Dioceses drawn together by any 
other influence than that of sectional association, over a minority 
of Dioceses not affected by that influence, is no reasonable ground 
of objection to the system. On the contrary, the diffusive and 
popular character of the representation provided by this System is 
as remarkable a feature of it as is its Diocesan constituency; and 
is quite as likely to be felt in its practical operation. And not- 
withstanding the claim which is frequently, not to say periodically, 
put forward for a representation more proportionate to the num- 
ber of people and less reflective of the will of the Dioceses as such, 
one may be pardoned for doubting whether any scheme could be 


42 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


devised which would be better calculated to bring out the senti- 
ment of the whole body of the Church, composed as it is of Bishops, 
Clergy, and Laity, than the one provided in the Constitution. Each 
of these orders, so to speak, has a voice in determining the action 
of that common government which has been established by the 
Dioceses which have adopted the Constitution ; and, contrary to the 
will of either of these orders, that common government cannot act. 
In the nature of the vote which we have been considering, the will 
of the Clergy and Laity is expressed by a representation equal in 
each Diocese, and equal in all the Dioceses each to the other; and 
if the vote were required to be that of a majority of the Dioceses, 
this might present the difficulty of a measure adopted by a majority 
of constituencies containing a smaller number of persons in all, 
than would be contained in a minority composed of more populous 
constituencies. Possibly it might present other difficulties. But 
whatever the difficulties might be under this requirement, it is 
manifest that they do not exist when no such requirement is made. 
If one should desire to obliterate the inherent distinction existing 
between Bishops, Clergy and Laity, and the equally inherent dis- 
tinction between the Diocesan constituencies of the System, thus 
transforming the representative body into a sort of exaggerated 
town meeting in which every question is to be decided by the 
numerical majority of individuals, it might be imagined that the 
present system would not answer the purpose. But if one seeks the 
justice of a really common consent, in which no right of either of 
the parts in which the community essentially exists is ignored, but 
in which each has its effective share, it seems impossible to imagine 
that this end can be better attained than by the means provided by 
the System under consideration. 


(c) But we are now to inquire as to the conditions under 
which action is to be taken by General Convention under the Con- 
stitution. And here, of course, it is to be said that any power con- 
ferred upon that body in the Constitution is to be exercised under 
such conditions as may in the particular instance be imposed. What 
is here to be considered is the question as to conditions which apply 


CONDITIONS OF ACTION. 43 


necessarily to any action of the body, and except in conformity to 
which the body cannot rightly act at all. Several conditions of this 
kind exist, and they are fittingly set forth in Article I., whereby 
the body is established, and its composition, and nature and mode 
of action defined. They may be thus stated: 

First. That the two Houses shall sit separately; from which 
it follows that action taken in a joinf session of the two Houses, 
if such a thing took place, would not be action of General Con- 
vention, but simply action of the company of individuals who were 
members of that body, without Constitutional force or effect. That 
the members of these two Houses may individually sit together, 
as they do in their capacity of members of the Domestic and For- 
eign Missionary Society chartered by Canon of General Convention 
is, of course, true. But action taken in such session, or in any 
joint session, is not action of General Convention. This condition 
is now formally expressed in the Constitution for the first time, 
although it was involved in Article 3, of the former Constitution, 
retained since its adoption in October, 1789, which provided that 
“the Bishops of this Church, when there shall be three or more, 
shall, whenever General Conventions are held form a separate 
House.” As General Convention had been organized in August, 
1789, by the Church in several States, in two only of which there 
were Bishops, and as there was then only one House existing, all 
that was necessary was to provide that when there should be three 
or more, the Bishops should form a separate House, which would, 
as a matter of course, sit separately ; and since in October, 1789, the 
Constitution was adopted by the Church in other States not before 
represented, in one of which there was a Bishop, the Bishops, thus 
being altogether three in number, did then actually constitute a 
separate House, and have ever since continued to sit separately as 
such House. Now, however, when in the amendment of the Consti- 
tution, the formation of the Constitution is projected as it were 
afresh, to make the Constitutional requirements correspond to 
existing facts, the provision is that General Convention shall con- 
sist “of the House of Bishops and the House of Deputies, which 
Houses shall sit and deliberate separately.” 

There is added to this: Second. The condition that “in all 


44 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


deliberations freedom of debate shall be allowed.” This condition 
is derived from the provision at the end of Article 1, of the Consti- 
tution amended, and was there retained from Article 1, of 1789, 
being found also in the same form in the previous drafts of 1785 
and 1786, the form being as follows: “And in all business of the 
Convention freedom of debate shall be allowed.” As the provis- 
ion was at first adopted it referred to the Clerical and Lay Depu- 
ties who then composed General Convention, the Bishops being not 
yet established as a House of that Convention. Presumably it was 
understood to apply to that House when it became part of the 
Convention; but (whether to put this hereafter beyond question, 
or merely with a view to the selection of a place convenient for the 
insertion of the clause), the Constitution as amended makes the 
provision in terms applicable equally to the House of Bishops and 
the House of Deputies, “which Houses shall sit and deliberate sep- 
arately; and in all deliberations freedom of debate shall be 
allowed.” Article I., Section 1. 

The expression seems to speak for itself, and hardly to need 
comment; but feelings and fashions vary among men from time to 
time, and it is as well to have this principle thus set in the fore 
front of the Constitution and to have a clear understanding of its 
meaning and importance. It is a guaranty of the right of every 
member of the Convention to be free to debate every measure 
which is the subject of its deliberations. Had the purpose been 
to guard the rights of the community in general the phrase freedom 
of speech would have been better; but the design being to guard the 
rights of members of a deliberative body, freedom of debate is the 
appropriate phrase. Freedom of debate is freedom of speech as to 
all that a member of such a body has the right to speak of; and 
that is only what is properly before the body for consideration. 
Every assembly of men which is not a mob must proceed with 
order, and there is among civilized people a certain traditional 
usage which is called Parliamentary Law, according to the easily 
understood rules of which, by common consent, discussion is to be 
conducted; and in addition to this,every such assembly may adopt 
its own rules by the consent of its members; and no one has the 
right, while he continues a member of the body, to transgress its 
rules. But within these limitations freedom of debate is absolute. 


EQUALITY OF THE TWO HOUSES. 45 


Every member of the body has the right to speak his mind as to all 
measures proposed; and he is not to be hindered by unreasonable 
rules extemporized for the purpose of stifling discussion, nor by 
harsh and arbitrary decisions of a presiding officer; nor, one is 
tempted to add, by any of that supercilious disapproval which a 
chairman is sometimes skilled to express without words; nor by 
that simulated and one-eared attention which but thinly veils the 
contemptuous prejudgment either of the chair.or of the assembly. 

Third. It may, perhaps, be open to question whether the pro- 
vision of Section 1 of Article I., that “either House may originate 
and propose legislation, and all acts of the Convention shall be 
adopted and authenticated by both Houses,” prescribes a mode, or 
a condition of action. The point is hardly of importance except as 
a matter of arrangement, and for convenience the provision is here 
considered as prescribing a condition upon which only the Conven- 
tion can act. Nothing is an act of the Convention which is. not 
originated and proposed in one House and adopted by the other, 
and authenticated by both Houses. It is an unqualified assertion 
of the absolute equality of the two Houses in the action of the Con- 
vention ; and while objections to the American Ecclesiastical Sys- 
tem as departing from the Catholic tradition in devolving legisla- 
tive power upon Presbyters and Laymen, are not to be discussed 
here, it may be proper to point out in passing that on the Consti- 
tutional basis of the equality of the two Houses, no power at all can 
be exercised by the Clergy and Laity contrary to the will of the 
Bishops. So that if by Catholic tradition Bishops are to be trusted 
to take the lead, with due consent of the governed, in the regulation 
of the Church, and to have an absolute and effectual negative upon 
all regulation not initiated by them; then the American Ecclesi- 
astical System is not a departure from Catholic tradition in this 
respect; and if this is not Catholic tradition, then the American 
Ecclesiastical System has set an excellent example, conformable to 
Apostolic precedents. 

It must be confessed, however, that in the establishment of this 
constitutional basis of equality, and the recognition of the just 
rights of the Episcopate involved therein, the development of the 
system has been somewhat slow, and the consent of inferior orders 


46 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


and laity has been given rather grudgingly and of necessity, than 
with that alacrity which characterizes the cheerful giver. 

In that tentative association of the Churches in the Middle and 
Southern States of the Union which preceded the authorized ac- 
tion of 1789, the plan of the organization was formulated by de- 
grees as a system in which Bishops were contemplated as possible 
but not essential. These preliminary steps were taken between 
1784 and 1786, and in those years there was no Bishop settled in 
any of the Churches in States associating. In the draft Constitu- 
tions of 1785 and 1786, Bishops when consecrated and settled, and 
acceding to the Constitution to be adopted, were to be recognized 
as members of the Convention ex officio ; a Bishop when one should 
be present being (1786) allowed to preside. And while no objec- 
tion was made to the right of the Churches in the States to pro- 
cure Bishops to be consecrated for them; and, on the contrary, 
joint measures were taken in furtherance of that object, yet appar- 
ently this was rather with a view to the effect of their spiritual 
ministrations, than with any clear conception of the position which 
they were to occupy in the projected representative system. With- 
out resident Bishops in the country for nearly two centuries, and 
not without very strong sentiments of aversion in many quarters to 
them considered as rulers, it is not remarkable that the founders 
of the system should have proceeded in the first place to organize 
it so that it would work without them; and should afterwards have 
been extremely cautious lest their inclusion should in any way dis- 
turb its mechanism. 

In short, from a religious standpoint, being members of an 
Episcopal Church, the founders were not prepared to deny that 
Bishops might be a desirable acquisition; but as founders of a 
system of polity, they really did not yet quite know what they 
should do with them. But they honestly lived up to the exigencies © 
successively presented to them; and when the time came that the 
bridge must be crossed, they were content to pass over it, but still 
with some cautious apprehension of what they might find on the 
other side. 

In 1784, Bishop Seabury had been consecrated for Connecti- 
cut; but neither Connecticut nor the other New England States 
were associated with the process of organization in the Middle and 


SKETCH OF ARTICLE 3. 4? 


Southern States. In 1787, Bishop White was consecrated for 
Pennsylvania, and Bishop Provoost for New York; both of which 
States were concerned in the organization of the Ecclesiastical 
Union. So that in the session of August, 1789, there were in the 
country two Bishops of the Churches in the Union. Article 3, of 
the Constitution adopted at that session, provided that the Bishops 
when there should be three or more of them, should whenever Gen- 
eral Conventions were held, form a House of Revision, to which 
Acts passed in General Convention should be submitted for con- 
currence. If these acts were sent back without concurrence, they 
were to be again considered in the Convention, and if adhered to 
by a majority of three-fifths of that body, were to become laws not- 
withstanding the non-concurrence of the House of Revision. All 
acts were to be authenticated by both Houses; and an act hecame a 
law unless the House of Bishops disapproved, giving its reasons in 
writing, within two days. And until there should be three or more 
Bishops connected with the system, a Bishop attending was to be 
ex officio a member of General Convention, voting with the Clerical 
and Lay Deputies of his State; and a Bishop in that case was to 
preside. 

After the adoption of the Constitution in that session, the 
Convention adjourned to another session to which had been invited, 
and at which were present, representatives from Connecticut and 
other Eastern States not hitherto represented. At this second ses- 
sion, certain amendments being agreed to, the Constitution was 
adopted by all the Churches represented, being the Constitution 
referred to in the title as adopted, “October, 1789.” 

The only amendment of importance—which, however, appears 
to have been a condition precedent to the accession of the Eastern 
States—was the substitution of a new Article3,which put the House 
of Bishops on another footing, giving to it the “right to originate 
and propose acts, for the concurrence of the House of Deputies 
composed of Clergy and Laity,” and providing that an act of the 
House of Deputies should be transmitted to the House of Bishops 
who should have a negative thereupon, unless it were adhered to by 
four-fifths of the other House; the other provisions of the Article 
remaining the same, except that the Bishops were allowed three 
days, instead of two, in which to act upon measures transmitted to 


48 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


them. Thus the House of Bishops was in a manner put on trial 
in the system, until in the first part of the 19th century, Article 3 
was amended by the withdrawal of the power of the House of 
Deputies to overrule the negative of the House of Bishops; al- 
though the Bishops in case of their non-concurrence were still ob- 
liged to act upon a measure proposed to them within three days, and 
to give their reasons for disapproval in writing. This amendment 
practically made the House of Bishops equal to the other House; 
because, although a condition was imposed upon the action of the 
Bishops, it was a condition entirely within their own power to ful- 
fil, if they were pleased to fulfil it. There was still, however, in 
the very fact of a condition imposed upon their action, some trace 
of the apprehension originally entertained in regard to them; and 
this trace waited to be removed until the first year of the 20th cen- 
tury, in which Article 3, with its historical reflections and sugges- 
tions, was superseded by the incorporation of the substance of its 
provisions into the Section 1, of Article I., now before us; whereby 
the absolute equality of the two Houses is plainly asserted, and the 
adoption and authentication of both Houses on the same terms is 
made the necessary condition of the action of General Convention. 

Fourth. It is also an essential condition of the valid action of 
any regularly constituted body that a quorum, designated by the 
rules of the body, be present. The provisions of the amended Con- 
stitution on this subject are in part new. So far as the House of 
Deputies is concerned, the new matter consists in the requirement 
of the presence of a representation by each order in each of a major- 
ity of the Dioceses entitled to representation ; whereas the previous 
requirement was only that the Church in a majority of the Dioceses 
which should have acceded to the Constitution should be represen- 
ted before business could be undertaken. (Art.1.) The new pro- 
vision is precisely as follows: “To constitute a quorum for the tran- 
saction of business, the Clerical order shall be represented by at 
least one Deputy in each of a majority of Dioceses extitled to repre- 
sentation, and the Lay order shall likewise be represented by at 
least one Deputy in each of a majority of the Dioceses entitled to 
representation.” (Sec. 4, Art. L) 

Previous to this amendment there was never any provision in 
the Constitution designating the quorum of the House of Bishops; 


EPISCOPAL QUORUM. poxogagc' 3 49 


and this silence has furnished occasion for some discussion and 
difference of opinion as to what the lawful quorum in that House 
was ; whether the ordinary quorum of a majority of its members, or 
a quorum otherwise determined. Dr. Francis Vinton (Manual 
Commentary, pp. 125-128), argues to the effect that three being 
the number necessary under the Constitution to bring the House of 
Bishops into existence, the necessary quorum would be a majority 
of that number; and that the presence of two Bishops only was 
sufficient to enable the House to act. In 1808, the attendance on 
the House of Bishops, in fact, consisted only of Bishop White and 
Bishop Claggett, and it had been anticipated that the latter would 
be prevented by indisposition from being present; and with refer- 
ence to this anticipation, Bishop White records (“Memoirs,” p. 
192. Ed. 1836), that he was prepared to maintain that a single 
Bishop may constitute a House. On the other hand, the suggestion 
seems sensible, that since the Constitution prescribed no necessary 
quorum for the action of the House of Bishops, that House was left 
at liberty to determine a quorum for itself by its own rules. The 
question, however, no longer exists; as the Constitution now desig- 
nates the majority of the body as its necessary quorum, excepting 
from that requirement Foreign Missionary Bishops, and Bishops 
who have resigned their jurisdictions; since a quorum would be 
more difficult to obtain if the required majority included those who, 
either on account of distance, or infirmity, would be unlikely to be 
regularly in attendance. 

In connection with the matter of the quorum, it is to be noted 
that in either House any number less than a quorum may adjourn 
from day to day. This permission is of importance in view of the 
fact that without it, if the prescribed majorities failed to attend at 
the appointed time and place, three years would elapse before an- 
other session could be held, unless the process of calling a special 
meeting were undertaken; to avoid which difficulties power is 
given, when there is no quorum, to keep the regular session alive 
until the quorum shall have assembled. The new provision is 
somewhat altered from a former provision, suited to the same pur- 
pose, that “the representation from two Dioceses shall be sufficient 
to adjourn.” (Art. 1.) To the new matter, however, the condi- 
tion is added that “neither House, without the consent of the other, 


50 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


shall adjourn for more than three days, or to any place other than 
that in which the Convention sa be sitting.” (Sec. 5, Art. I.) 

This quotation brings us to: 

Fifth, the conditions imposed as to the fine and place of meet- 
ing of General Convention, as to which it is provided that “Gen- 
eral Convention shall meet in every third year on the first Wednes- 
day in October, unless a different day be appointed by the preced- 
ing Convention, and at the place designated by such Convention ; 
but if there shall appear to the Presiding Bishop of the Church suf- 
ficient cause for changing the place so appointed, he may appoint 
another place for such meeting. Special meetings may be provided 
for by Canon.” (Sec. 6, Art. I.) These requirements are substan- 
tially, although somewhat less compactly, contained in the former 
Article 1; and the present Canonical provisions in reference to spe- 
cial meetings of General Convention, are to be found in Title III., 
Canon 1, See. i, of the Digest of Canons. 


The provisions of Article I., relate, as before stated, (1) to 
General Convention; and (2) to the office of Presiding Bishop of 
the Church, which latter subject is now to be considered. 

(2) Section 3, of Article L., is as follows: 

“The Senior Bishop of this Church in the order of consecration, 
having jurisdiction within the United States, shall be the Presid- 
ing Bishop of the Church. He shall discharge such duties as may 
be prescribed by the Constitution and the Canons of the General 
Convention. But if the Presiding Bishop shall resign his office as 
such, or if he shall resign his Episcopal jurisdiction, or if by reason 
of infirmity he shall become disabled, the Bishop next in seniority 
by consecration having jurisdiction within the United States, shall 
thereupon become the Presiding Bishop.” 

This provision is entirely new in the Constitution, which here- 
tofore has neither created the office of Presiding Bishop, nor defined 
the conditions of its tenure, nor prescribed its duties. 

It is true that the concluding part of the former Article 3, con- 
tained the provision, retained since 1789 (though really without 
reason, since it applied to a state of things removed by that very 
Article at the time of its adoption), that until the should bere 


PRESIDING BISHOP OF THE CHURCH, NEW OFFICE. 51 


“three or more Bishops as aforesaid,” a Bishop attending a Gen- 
ral Convention should be ex officio a member of it, voting with the 
Clerical Deputies of his Diocese, and that in such case a Bishop 
should preside. This, however, was a provision for the Chairman- 
ship of General Convention while it should continue to exist in the 
one House of Clerical and Lay Deputies; and had no application 
to the system as by that same Article made to include two Houses ‘ 
nor was there any other allusion than this in the Constitution of 
1789 to the function of presidency in connection with any Bishop, 
nor any use of the term Presiding Bishop. In subsequent amend- 
ments to the Constitution, however, the term is twice used in con- 
nection with certain things to be done; and in the Canons, there is 
frequent mention of the same kind; the reference being in all cases, 
as to a Bishop known in the Church under that title. The infer- 
ence then would be, that such an office, having come into existence 
without Constitutional or Canonical authority, had been authorita- 
tively recognized as existing, and had been utilized for the purposes 
of the system: and such is the fact, the term Presiding Bishop hay- 
ing originated in the House of Bishops itself. 

Associations of Bishops, like all other deliberative bodies, need 
a presiding officer; and not only has such a custom prevailed in 
Episcopal Synods and Councils, but also the office has been apt to: 
earry with it, not superiority of official authority, since all Bishops 
are essentially of equal official authority, but a certain capacity of 
representing the common consent of the body, deferred to by its in- 
dividual members. One of the most ancient known Canons (the 
34th of those called Apostolic), provided that the Bishops of every 
Nation should know him who was chief among them, and should 
recognize him as their head by doing nothing of great moment 
without his consent; and that he who was chief should do nothing 
without the consent of all, that there might be unity of heart. 
With such precedents before them, of which they cannot be pre- 
sumed to have been ignorant, it is not surprising that the first 
House of Bishops should have taken care to make corresponding 
provision in their own case; and although there were but three 
Bishops in the country, and but two of this number present in the 
House, the principle of the presidency of the House as the attribute 
of the Bishop of senior consecration was established; and the 


52 ARTICLE I. GENERAL CONVENTION: PRESIDING BISHOP. 


Bishop of Pennsylvania (consecrated in 1787) recognized, with the 
grace of a characteristic courtesy, the Bishop of Connecticut (con- 
secrated in 1784) as Presiding Bishop, on that principle. The 
principle was not adhered to; for in the next session, there being 
present the Bishop of New York (consecrated in 1787), and the 
Bishop of Virginia (consecrated in 1790), it was resolved that the 
presidency go by rotation beginning from the North: whereby the 
Bishop of New York presided. But some few years afterward (the 
Bishop of Connecticut having meanwhile deceased) the principle of 
seniority of consecration was again recognized, by virtue of which 
the Bishop of Pennsylvania was Presiding Bishop until his death 
in 1836. The same principle has been since observed, and is now 
embodied in the Constitution, which, as amended, provides that the 
senior Bishop in the order of consecration, having jurisdiction 
within the United States, shall be the Presiding Bishop, not of the 
House of Bishops alone but of the Church. 

The characteristics of seniority, and of the possession of juris- 
diction within the United States, which excludes a foreign but not 
a domestic Missionary Bishop, are the qualifiations for the office; 
and it continues to be held by the incumbent during his life, unless 
he shall resign it, or resign his jurisdiction, or by reason of infirm- 
ity become disabled; in which case the Bishop next in seniority by 
consecration, having jurisdiction within the United States succeeds 
him. Thus this office of Presiding Bishop of the Church, and the 
terms of its tenure, are established by the Constitution; and the du- 
ties attached to the office, without being enumerated, are declared to 
be such as may be prescribed by the Constitution, and by the Canons 
of General Convention. 

It is proper to note in conclusion that the principle of seniority 
is again called in question, and an amendment to the Constitution 
is already before the Church providing for the election of the Pre- 
siding Bishop, for the specified term of three years; the election to 
be in the way of nomination by the House of Bishops, and confirma- 
tion by the House of Deputies. 

The amendment as proposed at the session of 1901, and to be 
acted on in 1904, will be found in full on page 571 of the Journal 
of 1901. : 


BISHOPS. 53 


ARTICLE Il. 
BISHOPS. 


The provisions of Article II., are in part reproductive of those 
of Article 4, of the former Constitution; and in part an expansion 
of them by incorporation into the Constitution of the substance of 
Canonical provisions previously enacted by General Convention. 
There is also included in this Article the constitutional require- 
ment of a practice in regard to Episcopal consecrations which has 
been generally observed, the custom having found expression in 
Canons most ancient in the undivided Church. 

Section 1 of this Article is as follows: “In every Diocese the 
Bishop or the Bishop Coadjutor shall be chosen agreeably to rules 
prescribed by the Convention of that Diocese. Missionary Bishops 
shall be chosen in accordance with the Canons of General Conven- 
tion.” 

Here, it will be observed, three classes of Bishops are recog- 
nized by the Constitution; Bishops of Dioceses and their Coadju- 
tor Bishops, who are both to be chosen agreeably to rules prescribed 
by the Conventions of their respective Dioceses; and Missionary 
Bishops whose choice is to be provided for by Canons of the Gen- 
eral Convention. In other words there is no departure in the 
amendment from the established principles, that the right to de- 
termine the choice of Diocesan Bishops is reserved to the respective 
Diocesan Conventions; and that the choice of Bishops to preside 
over those who are as yet without Diocesan organization, is to be 
made in accordance with the Canons of General Convention ; which 
thus exercises the common care of all the Dioceses over the mission 
fields for which they are in common responsible. The first part 
of this amendment is reproduced with some change of phraseology 
from the former Article 4. The latter part, however, is an ex- 
pansion derived from previous practice; Canons as to the election 
of Missionary Bishops being already in existence. (Digest, Title 
I., Canon 19, Secs. vi, viii.) All that the Constitution formerly 
contained on this subject, was the provision that “The Bishop or 


54 ARTICLE II. BISHOPS 


Bishops in every Diocese shall be chosen agreeably to such rules as 
shall be fixed by the Convention of that Diocese.” (Art. 4.) The 
same provision, the word State being used instead of Diocese, is 
found in Article 4, of 1789, and in Article VI., of the preceding 
drafts of 1785 and 1786, showing the continuance from the be- 
ginning of the same idea, that whatever Bishops there might be in 
the State or Diocese, their choice should be according to the rules 
of that State or Diocese. 

The language of this sentence is so plain, and its meaning so 
obvious, that it is difficult to account satisfactorily for certain 
Canonical provisions, whereby General Convention, without as- 
suming to take away the right reserved under the Constitution to 
the Dioceses, has yet ventured to impose such conditions upon the 
exercise of it, as to restrict and impair its effectiveness; if not, as 
indeed in some instances has happened, to render it entirely in- 
operative, and force the Diocese to abandon the choice made, and 
resort to a second choice less obnoxious to the conditions imposed. 
It is, no doubt, true that in a matter like that of the choice of a 
Bishop for one member of a federated system of Dioceses, the others 
are, or may be, very seriously affected by the choice made; for 
“whether one member suffer, all the members suffer with it.” But 
it is also true that under a Constitutional system rights are given or 
reserved, and that conditions imposed upon the exercise of such 
rights otherwise than by the Constitution itself,are in derogationand 
denial of those rights; and that the right of choice agreeably to 
such rules as shall be fixed by the Convention of the Diocese en- 
tirely precludes the right of any other body to prescribe conditions 
upon the operation and fulfilment of such rules. The right to fix 
rules, involves all the right there is to make exceptions to those 
rules; and if the welfare of all the Dioceses requires that the liberty 
of any should be limited, the Constitution is the place, and the only 
place, in which such limitation should be imposed. 

It is, therefore, with peculiar propriety that the present amend- 
ment to the Constitution has not only re-affirmed the existing 
right of the Diocese to the choice of its own Bishop, but also ex- 
pressed with that statement the conditions under which that right 
is to be exercised, and under which all the Bishops, Missionary as 
well as Diocesan, are to be consecrated; thereby providing all the 


DISTINCTION BETWEEN POWER AND RIGHT OF TRANSMISSION. 55 


needed safeguards to the common welfare, in the settlement of in- 
dividual Bishops. Section 2, of Article II., contains the following 
provisions on this subject: 

“No one shall be ordained and consecrated Bishop until he 
shall be thirty years of age; nor without the consent of a majority 
of the Standing Committees of all the Dioceses, and the consent of 
the majority of the Bishops of this Church exercising jurisdiction 
within the United States. But if the election shall have taken 
place within three months next before the meeting of the General 
Convention, the consent of the House of Deputies shall be required 
in place of that of a majority of the Standing Committees.” 

Section 2, from which this quotation is made, concludes with 
another limitation upon the consecration of a Bishop elect, al- 
though this limitation affects not so much the Diocese concerned 
in the election, as the Bishops from whom the Elect is to derive his 
Episcopal authority. The concluding sentence of this section is as 
follows: 

“No one shall be ordained and consecrated Bishop by fewer 
than three Bishops.” 

The fact that every member of the Apostolic body (and by con- 
sequence every member of the Episcopal body, upon which, on the 
principles of Apostolic Succession, is devolved the ordinary official 
authority of the Apostolate), has received the gift of the same 
powers for the same purposes, involves the possession, on the part 
of each member of the body, of the whole power of the office, and 
also the obligation on the part of the individual to act in the dis- 
charge of the duties of the office in accord with those who hold the 
same powers equally with himself. And since the perpetuation of 
the office is by the will of the founder bound up with the terms in 
which the commission is conferred, every incumbent of that office 
has the power to transmit and perpetuate it. But in the exercise 
of this power, as in the case of all other powers of the office, he is 
under obligation to act in accord with those who hold equal powers. 
This duty of accord, however, which is the correlative of the power, 
is of the nature of a moral obligation. It is not in such sense a 
limitation of the individual power, as that the failure to observe it 
necessarily invalidates the exercise of the power. The distinction 
involved is the distinction between power and right; and while the 


56 ARTICLE Ii_ BISHOPS. © 


power is the essential attribute of the office, the right is dependent 
on the moral obligation attaching to the exercise of the power; 
which is not incapable of being modified or qualified by cireum- 
stances; as, for instance, the impossibility of attaining the formal 
expression of the accord pre-supposed. The foundation of the 
obligation is the importance of the preservation of the unity of the 
Church; and the avoidance, in order to that end, of all factious 
and schismatical action. And with this view the Canons of the 
undivided Church, and the general practice of the Bishops of the 
Church, have been solicitous to guard against mere individual ac- 
tion in advancement to the Episcopal Order, by requiring the co- 
operation and concurrence of several Bishops. 
. The first Canon of the code called Apostolical, generally as- 
signed to the second or third century, says ‘“ Let a Bishop be or- 
dained by three, or at the least by two Bishops.” And to the same 
effect, as checking individual action by requiring common consent, 
are the fourth and the sixth of Nicea that a Bishop is to be ap- 
pointed by all the Bishops in his Province, and that no one is to 
be made a Bishop without the consent of the Metropolitan; and the 
nineteenth of Antioch, that a Bishop shall not be ordained with- 
out a Synod and the presence of the Metropolitan of the Province.* 

Such seems to have been the general practice of the Church; 
and although in later times there have not been wanting instances 
in which by Papal authority consecrations were performed by single 
Bishops, associated sometimes with others not of the Episcopal 
Order, yet this was consonant to the scholastic theory which re- 
garded the Episcopate as an hierarchical extension of the order of 
Priesthood, and as acquiring by consecration no increase of the 
power of order but only an added power of jurisdiction the source 
of which was to be found in the Papacy; so that the authority of 
the Pope in the gift of that power of jurisdiction was upon that 
theory the only essential to a consecration, and might he expressed 
by one of his Episcopal deputies as well as by several. 

The Church of England, however, returning in this respect as 
in others to the practice of more primitive principles, has always 
required the co-operation of several Bishops in the act of conferring 


tit 2 a a ee ee 


* Fulton’s Index Canonum, 2nd Ed., pp. 81, 123, 125, 243. 


PRINCIPLES. INVOLVED IN AMENDMENT. 57 


the Episcopal Order; and even “the Catholic remainder of the 
Ancient Church of Scotland” from which has been drawn one of the - 
strands of the cord which binds the American Episcopate in legiti- 
mate succession to the Apostolic body, was never so poor in Bishops, 
or in Catholic spirit, as to fail in the due observance of this Catholic 
rule, as historical evidence abundantly proves; so that the Amer- 
ican Episcopate, received under this sanction, has but followed the 
example of its predecessors in the practice of the same rule, which 
is now most fittingly incorporated into the fundamental law of the 
association of the Dioceses over which it presides. 

Two reflections are suggested by the language of this provision, 
and its meaning, which appear to be worthy of note. 

One of these is that a Bishop is not only consecrated, that is 
admitted with due solemnities to the exercise of certain functions 
superimposed upon his existing order of Priesthood, but that he is 
likewise ordained, that is admitted to an order which he did not 
before possess; so that the expression, “ordained and consecrated,” 
used in the amendment is by no means to be looked upon as a pleo- 
nasm, but as the declaration of a principle, and as a safeguard 
against a possible wrong inference from the use of the word conse- 
erated, without the accompanying word which shows the nature and 
effect of consecration. 

The other reflection is that as the act of ordination and conse- 
cration is required to be by several Bishops, that act is the act of 
each one who participates in it; so that the act is not the act of one 
Bishop with which others are associated as witnesses, but an act in 
which all the Bishops acting are co-operators. The importance of 
this principle to the preservation of the actual succession from the 
beginning to the end of the transmission of the Episcopal order is 
manifest; since the possibility of the failure of that succession 
through the incapacity of an individual actor to transmit it, is bal- 
anced by the extreme improbability—not to say impossibility—of 
the same incapacity existing in the case of several actors in a conse- 
eration. And when it is considered that this rue of several co-oper- 
ating Consecrators has prevailed since the most ancient times, it 
is evident both that the rule has provided the best possible testi- 
mony to the fact of the transmission of that succession in the past 
history of the Church, and that the continuance of the rule pro- 


58 ARTICLE Il. BISHOPS. 


vides the best possible means of securing the transmission of that 
succession in the future. 

Attention has thus been called to the provisions of the first 
two sections of Article II., as being in part a reproduction of the 
former Article 4, and in part an expansion of its purport and effect. 
But before leaving this part of Article II., it seems important to 
consider the significance of a change in phraseology from that of 
the former Article 4, which it has in the main re-established. 

The opening words of Article 4, were “The Bishop or Bishops 
in every Diocese shall be chosen agreeably, etc.” The language of 
Article IT., in the same connection is, “In.every Diocese the Bishop 
or the Bishop Coadjutor shall be chosen agreeably, etc.” It has 
already been observed that the language of Article 4, was the same 
as had been adopted from the origin of the Constitution, except in 
the use of the word State instead of the word Diocese. The ap- 
parent difference between that language, and the language of the 
present Article II., is that whereas formerly the provision covered 
the choice of any manner or number of Bishops which it might 
become expedient to have in a State or Diocese, now the nature and 
number of Diocesan Bishops is definitely determined by the lan- 
guage used; so that there is not at present under the Constitution 
the same liberty in the Diocese, which was formerly left to it in 
the matter of multiplying Bishops. 

Of course it has always been understood that on Church prin- 
ciples, the Episcopate being the centre of the unity of the Church, 
there could ordinarily be but one Bishop in a Diocese. But ex- 
ceptions to this rule have also always been understood to be pos- 
sible and justifiable. The Bishop of the Primitive Church, for 
example, whose jurisdiction extended not only to the city in which 
his seat was settled but also to the Paroichia or neighbouring 
region, had sometimes his Chorepiscopus, or country Bishop who 
exercised Episcopal functions under him in the outlying districts. 
Coadjutor Bishops also in aid of Diocesan Bishops have always 
been allowed, as not inconsistent with the principle of unity; and 
Bingham records instances of the recognition of the fact that “the 
allowing of two Bishops in one city, in some certain circumstances, 
and critical junctures, was the only way to put an end to some 
long and inveterate schism.” (Christian Antiquities, Book II. 


PREVIOUS LIBERTY OF DIOCESES LIMITED, 59 


Ch. XIII., See. 2.) A more modern exception which, however, 
appears under the civil sanction of a Parliamentary act in the 
reign of Henry VIII., is to be found in the establishment of what 
are known as Suffragan Bishops with functions analogous to those 
of the Chorepiscopi of ancient times; that is those of supplementing 
under the direction of the Bishop of the Diocese his Episcopal 
oversight of certain parts of his See. The title is unfortunate and 
confusing, inasmuch as all the Bishops of a Province are Suffragans 
in the proper sense of ecclesiastical language, because they attend 
the Councils called by the Archbishop or Metropolitan of the 
Province to give their suffrages or votes upon measures submitted 
to their consideration. But the Suffragan of modern times is a 
Bishop distinguishable from a Diocesan Bishop in respect of the 
subordinate and limited nature of his jurisdiction, and distinguish- 
able from an Assistant or Coadjutor Bishop in respect of the right 
of succession to the See upon the decease of the Diocesan, which 
the Coadjutor has, and the Suffragan has not. 

These facts were, doubtless, not unknown to the founders of 
our American system. At any rate the founders would appear 
from the language of Article 4, to have refrained from placing any 
limit upon the application of the precedents which these facts 
furnished for action on the part of the Church in any State; which 
accordingly was at liberty to proceed to such choice of Bishops as 
might appear to its Convention to be expedient. Of this liberty the 
Convention of the Church in the State of New York availed itself 
by the election to the Episcopate of the Rey. Dr. Benjamin Moore, 
consequent upon a resignation of jurisdiction by Bishop Provoost. 
The House of Bishops, before whom the matter came at the General 
Convention of 1801, while declining to recognize Bishop Provoost’s 
resignation, expressed a readiness to consecrate a suitable person 
under the circumstances; but were “explicit in their declaration 
that they shall consider such a person as assistant or Coadjutor 
Bishop during Bishop Provoost’s life, although competent in point 
of character to all the Episcopal duties; the extent in which the 
same shall be discharged by him, to be dependent on such regula- 
tions as expediency may dictate to the Church in New York, 
grounded on the indisposition of Bishop Provoost, and with his 
concurrence.” The Consecration of Bishop Moore was accordingly 


60 ARTICLE II. BISHOPS. 


consummated, and the certificate of his Consecration declares it to 
have been “into the office of Bishop of the Protestant Episcopal 
Church, in the State of New York, to which the said Benjamin 
Moore, D.D., hath been elected by the Convention of the said State, 
in consequence of the inability of the Right Rev. Bishop Provoost, 
and of his declining all Episcopal jurisdiction within the said 
State.” (Buioren’s Journals, pp. 202, 206.) 

The precedent furnished by this case appears to have settled 
the status of an assistant or Coadjutor Bishop, as elected by the 
Convention of the State, or Diocese; to the exercise of a jurisdic- 
tion determined by the concurrence of the Convention and the 
Bishop of the Diocese; until the decease of such Diocesan; with 
the right of succession upon that decease. And the General Con- 
vention willing to repair by legislation any defect in the Consti- 
tutional provision on the subject, has by canon, in the line of this 
precedent prescribed the position and function of the Coadjutor; 
adding to this the following express statement: “No person shall 
be elected or consecrated a Suffragan Bishop, nor shall there be 
more than one Bishop Coadjutor in a Diocese at the same time.” 
(Tit. I., Cam. 19,, Sec. ¥.) 

These things being so, and the question being as to the sig- 
nificance of the phraseology in the opening of Article II., it would 
appear that the Constitution as amended has used the language 
cited, in the sense which canonical and common usage had given to 
it; and that when Article II. speaks of “the Bishop or the Bishop 
Coadjutor” in every Diocese, it denotes one Bishop of each kind as 
the only Bishops for whose choice at any given time it makes pro- 
vision. The Convention of a Diocese has then no right under the 
Constitution to any further choice, or to any extension of its Epis- 
copate beyond that limit; and since the Constitution recognizes no 
other right to the choice or appointment of Diocesan Bishops than 
such as is reserved to the Diocese, it is beyond the scope of the legis- 
lation of General Convention to make such extension. It would 
seem, therefore, that the existing Canonical prohibition of addi- 
tional Coadjutors and of Suffragan Bishops is now included also 
in the Constitution. 

Section 3 of Article IT. is an expansion of the latter part of 
the former Article 4, which was as follows: “Every Bishop of 


APPLICATION OF CATHOLIC RULE. 61 


this Church shall confine the exercise of his Episcopal office to his 
proper Diocese, unless requested to ordain, or confirm, or perform 
any act of the Episcopal office in another Diocese by the Ecclesias- 
tical authority thereof.” This same provision with one important 
difference, beside that so often necessary to note of the use of the 
word State instead of Diocese, had been in the Constitution from 
the beginning. The difference was that the original exception to the 
restricting of the Bishop to his proper jurisdiction was, “unless 
requested * * * by any Church destitute of a Bishop.” In 
effect the principle was recognized from the beginning of our Sys- 
tem (as it had been in the Church at large, so early that the Nicean 
tule in 325 was based on the ground that the “ancient customs” 
should prevail), that no Bishop should intrude into the jurisdic- 
tion of another, but confine himself to the affairs of his own 
Diocese. But the form in which the principle was at first stated in 
this country, was due to the fact that there was no Bishop in the 
number of those States which were then associating themselves; 
and afterward but three Bishops in all in the States which actually 
did associate themselves in 1789. The rule adopted under these 
circumstances, although it was the counterpart of the Catholic rule, 
was designed therefore not so much to protect the Bishops from the 
intrusion of other Bishops, as to protect the Churches in the States 
which were yet without Bishops from being Episcopized against 
their will by the Bishops of other States. The continuance of the 
provision in this form for many years after all the States, or Dio- 
ceses in the later terminology, were supplied with Bishops, had the 
singular, and doubtless unanticipated result of placing it constitu- 
tionally beyond the power of the Bishop of a Diocese to invite 
another Bishop to officiate within his jurisdiction; since such invi- 
tation could not be said to proceed from a “Church destitute of a 
Bishop.” It was not until 1874 that the requirement of the request 
of the Ecclesiastical authority of a Diocese was substituted for the 
requirement of the request of a Church destitute of a Bishop. The 
tule as settled in 1874 has been embodied in the present Section 
3 of Article II., and the exceptions to the rule have been extended 
by several additions, which are plainly specified, and seem to require 
no explanation. Section 3 is as follows: 

“A Bishop shall confine the exercise of his office to his own 


62 ARTICLE Il. BISHOPS. 


Diocese or Missionary District ; unless he shall have been requested 
to perform Episcopal acts in another Diocese or Missionary Dis- 
trict by the Ecclesiastical Authority thereof, or in a vacant Mission- 
ary District by the Presiding Bishop of this Church, or unless he 
shall have been authorized and appointed by the House of Bishops, 
or by the Presiding Bishop by its direction, to act temporarily in 
case of need within any territory not yet organized into Dioceses 
or Missionary Districts of this Church.” 

Article II. concludes with a brief section which is entirely new 
in the Constitution, although the subject of it had been quite fully 
legislated upon in Sec. xvi. of Canon 19 of Title I. of the Digest 
of Canons of General Convention. The section is as follows: 

“Sec. 4. A Bishop may not resign his jurisdiction without the 
consent of the House of Bishops.” 

It has been noted above that in 1801 on the first occasion in 
our history in which a resignation of jurisdiction occurred, the 
House of Bishops declined to recognize it as effectual. The matter 
came before that House by the presentation on the part of Bishop 
White of a letter addressed to him as President by Bishop Provoost 
of New York, and by a message from the House of Clerical and 
Lay Deputies inquiring whether the House of Bishops had received 
any communication from Bishop Provoost on the subject. The let- 
ter of Bishop Provoost appears to express the conviction entertained 
by the writer that it was a duty of courtesy to the House of Bishops 
that information should be communicated to “that venerable body” 
of the act of resignation already performed ; but contains no recog- 
nition of any authority of the House in the premises. Induced by 
ill health, and melancholy occurrences in his family, and a wish to 
retire from public employment, Bishop Provoost says, “I resigned, 
at the last meeting of our Church Convention, my jurisdiction as 
Bishop of the Protestant Episcopal Church in the State of New 
York” 

It is really not a little remarkable that, with no express rule 
before him, and with no precedent to guide him in this matter, 
Bishop Provoost should have taken the course which he did in 
resigning his jurisdiction into the hands of the Convention of the 
Church in the State of New York, conformable to sound principle 
as that course appears to have been. From the Episcopate of the 


ASPECTS OF JURISDICTION. 63 


Church of England he had received his Episcopal order, and that 
general or universal mission which constitutes jurisdiction in its 
larger sense, and which is the necessary accompaniment of a valid 
consecration to the Episcopate. But the lawful localization of this 
universal mission, which constituted his jurisdiction in the narrower 
sense of the right to exercise his Episcopal office in a certain field or 
place, he had received from the Convention of the Church in the 
State of New York; which had elected him to be the Bishop of the 
Church in that State; which had received him in that capacity after 
his Consecration, and upon which would devolve the right and duty 
of electing his successor. It was, therefore, natural, and in accord- 
ance with just reason based upon sound principle, that Bishop Pro- 
voost should have resigned his jurisdiction, in the only sense in 
which he was capable of resigning it, into the hands of the Conven- 
tion of the Church in the State of New York; and it is a pleasure 
to observe the courteous spirit which characterized his relations 
with the members of the House of Bishops (then living), and led 
him to apprise them of an event which, as he evidently realized, 
could not fail to be of interest to them. 

But principles are correlative as well as facts, and it is not un- 
natural on the other hand that the House of Bishops should have 
regarded that aspect of the case which affected not only the Con- 
vention of the Church in the State of New York, but also those 
who were partakers with the Bishop of New York in that larger 
mission which belonged to them by virtue of their common conse- 
eration to the Episcopate, and which gave them an interest and 
concern not only in that part of the Church particularly entrusted 
to their individual care, but also in all that related to the welfare 
of the whole flock of Christ, of which He had commissioned them 
to be the Shepherds. Their feeling of the responsibility thus indi- 
cated is apparent from the action taken by the Bishops, which is 
recorded in their Journal in the following appropriate words: 

“The House of Bishops having considered the subject brought 
before them by the letter of Bishop Provoost, and by the message 
from the House of Clerical and Lay Deputies, touching the same, 
can see no grounds on which to believe that the contemplated 
resignation is consistent with ecclesiastical order, or with the prac- 
tice of episcopal churches in any ages, or with the tenor of the 


64 ARTICLE II. BISHOPS. 


office of consecration. Accordingly, while they sympathize most 
tenderly with their brother Bishop Provoost, on account of that ill 
health and those melancholy occurrences which have led to the 
design in question, they judge it to be inconsistent with the sacred 
trust committed to them to recognize the Bishop’s act as an effectual 
resignation of his episcopal jurisdiction.” (Bioren’s Journals, pp. 
201, 202.) 

Neither of the precedents thus established, either by the act of 
Bishop Provoost or by that of the House of Bishops, has in the 
later practice of the Church been followed. In process of time 
there have appeared to be reasons sufficient to justify the resignation 
of jurisdiction in particular cases. Whether the difficulty could not 
have been met as it was by the House of Bishops in the case just 
considered, by provision for the consecration of a Coadjutor to per- 
form duties to which the Diocesan was no longer competent or con- 
genial, without such resignation, is a question which it is of no 
use to discuss. The subsequent judgment of the Church has ruled 
otherwise, and the Canons of General Convention have recognized 
the practice of resignation of Episcopal jurisdiction, and made 
formal provision for making such resignation effectual by the con- 
currence and consent of the House of Bishops. The concern of the 
‘Diocese in the matter has not in this legislation been expressly men- 
tioned. Whether it has been assumed that the Diocese would desire 
such resignation, or that it would have opportunity of passing upon 
it before the authorized application to the House of Bishops, or 
whether the just right of the Diocese has been ignored, or simply 
forgotten, does not appear. In fact the legislation has required the 
resignation to be presented to the Presiding Bishop, and acted upon 
by the House. And the sentence in the amended Constitution which 
deals with the subject, does so only in view of the relations of the 
resigning Bishop to the House of which he is a member, and as if 
the House of Bishops had designated and determined the jurisdic- 
tion of the Bishop of a Diocese, equally with that of the Bishop of a 
Missionary District. However, this sentence, brief as it is, is 
a valuable addition to the Article which it concludes, inas- 
much as it settles the right of the resignation of Episcopal 
jurisdiction with the concurrence of the House of Bishops, and thus 
affords a constitutional basis for the legislative action on the sub- 
ject by General Convention. 


BISHOPS FOR FOREIGN LANDS. 65 


ARTICLE Ill. 


BISHOPS FOR FOREIGN LANDS. 


The process of amendment which we are following has trans- 
ferred the former Article 10 to the position of Article IIT. of the 
new Constitution; and along with the transfer has accomplished 
certain changes in phraseology, omitting some provisions, and in- 
troducing one substantial addition to the provisions previously 
made. In respect of each of these three changes Article III. appears 
to be an improvement upon the former Article 10. 

Probably the general habit of Constitutions is to conclude with 
a provision relating to their establishment or the mode to be adopted 
in the event of alteration. At all events there seems to be a certain 
fitness in the conclusion of an instrument of that sort with an 
Article which in some sense sums up the matters previously treated, 
and as it were formally submits them to the use of those for whom 
they have been prepared; and such was the purport of Article 9, 
with which the Constitution used to conclude before the addition of 
Article 10. After such a valedictory, to go on formulating new 
matter in a kind of postscript, gives to the instrument a rather 
unfinished appearance; and when we find this late provision in the 
form of Article 10 (attributed in a foot note to the year 1844), im- 
mediately followed by the solemn declaration that it was DoNE IN 
1789, the reflection perversely forces itself upon the humorous that 
it must have been somewhat overdone by the time it was served. So 
that in point of symmetry, and in the interest of due gravity, there 
is certainly a great gain in the change of position assigned to it by 
the recent amendment. 

The greater part of the changes made in the text of Article 10 
being matter of phraseology, it will be sufficient, without detailed 
comparison, to quote Article III. as it stands in the Amended Con- 
stitution, noting afterwards the omission and addition involved in 
its adoption. It is as follows: 

“Bishops may be consecrated for foreign lands upon due appli- 


66 ARTICLE III. BISHOPS FOR FOREIGN LANDS. 


cation therefrom with the approbation of a majority of the Bishops 
of this Church entitled to vote in the House of Bishops, certified to 
the Presiding Bishop; under such conditions as may be prescribed 
by Canons of the General Convention. Bishops so consecrated shall 
not be eligible to the office of Diocesan or of Bishop Coadjutor of 
any Diocese in the United States or be entitled to vote in the House 
of Bishops, nor shall they perform any act of the episcopal office 
in any Diocese or Missionary District of this Church, unless re- 
quested so to do by the Ecclesiastical Authority thereof.” 

In former phases of the Constitution, characterized as they 
were by the entire absence of allusion to the Missionary work of the 
Church, or to the connection of any Bishops with that work, the 
appearance of an Article providing for the consecration of Bishops 
for foreign countries gave occasion, perhaps not unnaturally, to a 
first impression in some quarters, that the reference to Bishops for 
foreign countries indicated Bishops sent thither as Missionaries 
of this Church. Closer consideration of the Article, however, and a 
comparison of its terms with those of the Canons of General Con- 
vention providing for the consecration of Missionary Bishops, which 
bore no kind of relation to this Article, would convince any one 
that the object of this Article was of an entirely different character. 
And the fact that the Constitution in its present phase does in sey- 
eral parts distinctly recognize and provide for Missionary Bishops 
and their work, would, of course, entirely remove ground for this 
misapprehension. 

When one recalls the condition of the Church in the Colonies 
before the Revolutionary War in this country, and in the States 
after its termination, and the unwearied fruitless efforts to obtain 
from the Bishops of the Church of England the gift of that conse- 
eration which would enable the Church here to have Bishops of its 
own; and remembers that the repeated failure of these efforts was 
the result not of unwillingness, or the absence of sincere desire on 
the part of English Bishops to communicate that gift, but of their 
conceived want of legal capacity to impart it; one seems to see just 
reason why the Church in this country, having finally attained to 
the fulness of the possession of the duly transmitted Episcopate, 
should be conscious to itself of the desire to make the like provis- 
ion for others, in the supply of such need as in times past it had so 


DESIGN OF ARTICLE. 67 


sorely felt; and of its duty to take such measures as would assure 
its own Bishops of their perfect freedom and legal right to impart 
unto others that good thing which they themselves had received. 
Such would seem to have been the design in which this Article 
was conceived, and which its terms are adapted to fulfill; and no 
serious criticism seems to be applicable either to the design, or to 
the terms providing for its fulfillment. There is, however, a cer- 
tain difficulty inherent in the subject to which it relates; and it is 
not impossible that some embarrassment may result, if such has not 
already resulted before the present amendment, from the endeavor 
to accomplish its purpose in particular instances. A foreign land in 
which there now exist conditions exactly similar to those in the 
early history of our country, is probably unlikely to be found. For- 
eign lands are either not Christianized, in which case they may be 
the object of missions, or they are under the jurisdiction of some 
already settled branch or form of Christian Church, in which case 
there may possibly arise the question whether “Application there- 
from” may not be made before it is “due.” Still it is possible that 
a foreign mission may result in the establishment of a Christian 
community so firmly settled in the principles of this Church as to 
be capable and desirous of becoming an independent ecclesiastical 
organization, in which case Bishops of its own would be essential. 
And it is also possible that such a condition may exist in a country 
partly or wholly under the direction of an organized form of 
Christianity, as may justify the action of persons whose spiritual 
needs are either not supplied or are injuriously set at nought and 
outraged by such organization,’ in associating themselves together 
in the form of a distinct Church, which they would be fain to con- 
nect with the visible Church of Christ’s foundation by the only 
legitimate bond of continuity provided for that purpose. Under 
conditions of this kind an application for the Episcopate would 
seem not only to be necessary to the perpetuity of such association, 
but also to furnish opportunity for the exercise, on the part of the 
Bishops to whom it was made, of that Christian charity, the essence 
of which, or at least of the expression of which, lies in the doing 
unto others as they would others should do unto them. It is diffi- 
cult to speak clearly upon this subject without going to a greater 
length than would be appropriate to the present undertaking. The 


68 ARTICLE Ill. BISHOPS FOR FOREIGN LANDS. 


mist which befogs the Christian conscience on all matters touching 
its relation to the visible Church of Christ arises from the unhappy 
divisions which have drawn it from the exalted position of the city 
which is set on an hill, down into the tangled morass of disputed 
claims and controverted positions. Without metaphor, however, it 
is clear, on recurrence to the fundamental principles of the original 
Constitution of the Church, that if there are, among those who pro- 
fess and call themselves Christians,some organizations which in their 
endeavor to hold fast the Faith and Sacraments of Christ have 
ceased to hold to the Apostolic Ministry of His appointment ; and 
others which, with professed adherence to that Ministry, have de- 
praved the Faith and debased the Sacraments which are its com- 
plement, there is reasonable ground on which those who are firmly 
persuaded that they hold all these essentials in their integrity 
should be willing to extend to those ike minded with them, such 
aid as they may seek in order to the fulfilment-of spiritual aspira- 
tions which are clogged or stifled under an administration which 
claims their allegiance without satisfying their needs. After all, 
the whole case depends, in every instance of this aspect of it, upon 
the justice of the grounds upon which application for aid in the 
perpetuation of a corporate existence is based. If the grounds are 
not just, the separate existence is schismatical, and there is no call 
upon this Church to add the Episcopal exponent of unity to a 
schism; if the grounds are just, the guilt of the schism lies, upon 
Catholic principles, on those who have made such separation neces- 
sary, and a proper opening is made for the exercise of that general 
concern for the welfare of the Church, irrespective of Diocesan 
limits, which is characteristic of the Episcopal office, and to refrain 
from which would indicate an absence of Christian charity and 
Christian courage, on the part of the Episcopate whose aid had been 
sought. 

These things being considered, and bearing in mind also the 
need of due circumspection, without which rash and indiscreet pro- 
ceeding may mar even what appears to be just action, it seems that 
the provisions of this Article, especially in its present form, are 
eminently wise; and that they furnish all the safeguards which the 
Constitution can properly supply. To establish the right of the 
Bishops to act in the discharge of the charitable duty which may be 


CANONICAL CONDITIONS. 69 


presented to them; and at the same time to relieve them from the 
burden and responsibility of choosing or declining a course in 
which their sympathies would naturally be keenly enlisted, by 
affording that balance to their judgment which would be supplied 
by a general law, adopted with their own approval, prescribing 
beforehand and apart from the urgencies of special interests, the 
conditions on which the consecration in question should take place, 
seems to be taking the ground of right principle, and using all 
needful precaution against the possible perversion of that principle. 

It is the insertion of this clause in regard to the prescribing of 
conditions by Canon of General Convention, which constitutes the 
addition made in Article III. in amendment of the former Article 
10. And this addition apparently accounts for the omission in 
Ariicle I11. of those provisions of Article 10, which required that 
the approbation of the majority of the Bishops to a proposed con- 
secration of this sort should be given upon their being satisfied that 
the person designated had been duly chosen and was properly quali- 
fied ; and that the order of Consecration in the case should be con- 
formed as nearly as possible, in the judgment of the Bishops, to that 
used in this Church; since provisions like these would rightly and 
naturally be included among the conditions left to be prescribed by 
Canon. 

For the rest, as already remarked, the changes made in the 
amendment are verbal, and are so plain as apparently to require no 
comment. 


70 STANDING COMMITTEES. 


ARTICLE IV. 
STANDING COMMITTEES. 


One of the first steps taken by the Churches in the States after 
their association under the Constitution was to provide in their 
General Convention for the establishment in each one of a Standing 
Committee, to be appointed by the Convention of the Church in 
the State. ‘The Canon in which this provision is made is the sixth 
of a series of seventeen adopted at the October session of 1789 in 
the House of Clerical and Lay Deputies on the 15th, and in the 
House of Bishops on the 16th of October, the Constitution having 
been adopted on the second day of that month. (Bioren’s Journals, 
pp. 77, 83, 84, 92, 95.) 

This sixth Canon included Canons six and seven of a series of 
ten Canons adopted in the previous session of that year, on the 5th 
of August (Ib. p. 59) ; the first seven Articles of the Constitution, 
including those empowering General Convention to take legislative 
action, having been formally adopted and declared to be “a rule of 
conduct for this Convention,” on the first day of that month. Ib. 
52.) 

This provision in regard to the Standing Committee is intro- 
duced in connection with requirements as to the recommendation 
to the Bishop, of Candidates for Holy Orders, and the Canon first 
assumes the existence of such Standing Committees by assigning 
to them certain functions in this matter, and then provides that 
“in every State where there is no Standing Committee, such com- 
mittee shall be appointed at its next ensuing Convention.” Canoni- 
cal provisions in reference to these Standing Committees have from 
time to time been made by General Convention, devolving upon 
them additional duties, and Canon 2 of Title III. of the Digest in 
which their position was described, has now been in substance em- 
bodied in Article IV. of the Constitution, which is as follows: 

“Tn every Diocese a Standing Committee shall be appointed by 
the Convention thereof. When there is a Bishop in charge of the 


REPRESENTATIVE OF DIOCESAN CONVENTIONS. V1 


Diocese the Standing Committee shall be his Council of advice ; and 
when there is no such Bishop the Standing Committee shall be the 
Keclesiastical Authority of the Diocese for all purposes declared by 
the General Convention. The rights and the duties of the Stand- 
ing Committee, except as provided in the Constitution and Canons 
of the General Converition, may be prescribed by the Canons of the 
respective Dioceses.” 

As appointed by the Diocesan Convention the Standing Com- 
mittee is the agent and representative of that Convention, and sub- 
ject to its Canonical direction as to all matters not otherwise pro- 
vided for by the Constitution, and by the Canons of General Con- 
vention. That the Constitution should devolve, and empower 
General Convention to devolve, upon it certain rights and duties is 
well; and that the Canons of the Convention of the Diocese in this 
as in other matters are subordinate in their obligation to the Consti- 
tution, and the constitutional acts of General Convention is true. 
But certainly this would have been equally true if the last sentence 
of this Article had been omitted; and to recognize so formally the 
power of the Diocesan Convention to prescribe rules for its own 
agent, provided such rules did not contravene those of higher obli- 
gation, was perhaps hardly necessary. 

As the representative of a Convention composed always of 
Clergy and Laity, as well as in conformity to fundamental ideas in 
the American representative System, the Standing Committee of 
the Diocese has generally been composed equally of Clerical and 
Lay members. There is, however, no provision in the Constitution, 
or in Canons of General Convention, either as to this point, or in 
regard to the number of which the Committee shall consist; these 
matters being left to the determination of the Diocesan Convention. 
In fact, as to the former point, the general practice is that the 
Standing Committee is composed of an equal number of Clergymen 
and Laymen; there having been, it is believed, only two of the 
Dioceses, namely Connecticut and Maryland, in which the appoint- 
ment has been limited to the Clergy. It is probable that in these 
instances the limitation was originally based upon a conceived anal- 
ogy between such a Committee and the Bishop’s Council, which in 
older Systems had existed, and had been composed of Clergymen. 
From the most primitive times the Bishop, distinguished in this 


72 ARTICLE IV. STANDING COMMITTEES. 


respect froin an arbitrary ruler imposing upon his subjects the de- 
terminations of his own will, had been accustomed to associate with 
himself a body of his Presbyters, who were in more direct com- 
munication with the people than he could be, with whom he could 
take counsel as to the welfare of the Church, and the course best 
suited to promote it; and for a long period after the Apostolic age, 
the only Synods known were those of the Diocese, whereby the 
Bishop might be well assured that the measures which by his au- 
thority were imposed, were such as met with the approval and con- 
currence of those to whom they were directed. Under the Ameri- 
can Heclesiastical System, however, the Convention of the Diocese 
supplies the place of the old Diocesan Synod, which was but the 
Bishop’s Council, or an amplification of it; and as that Convention 
could not be expected to be always accessible, it is easy to see how the 
idea should be conceived, that the Standing Committee of its choice 
might hold this advisory relation to the Bishop; how the associa- 
tion of the Laity with the Clergy in that Committee as well as in 
the Convention should appear to the Dioceses in general to be quite 
consistent with this function; how the idea should be recognized 
and formulated in the Canons of General Convention; and how, 
finally, it should come to be embodied in the Constitution. And 
«lthough the provision of the Constitution is not so wide as that of 
the Canon, which authorizes the Bishop to summon the Committee 
when he wishes for their advice, and the Committee to meet of their 
own motion when they wish to advise; yet no doubt these are but 
Canonical details suited to the application of the general principle 
new stated in the Constitution, that the Committee are the Bishop’s 
Council of Advice. 

Thus to the duty of guarding the portals of the Ministry, as- 
signed to them by making their recommendation the necessary pre- 
liminary to ordination, has been added the duty of acting as the 
Constitutional advisers of the Bishops in their respective Dioceses, 
when there is a Bishop in charge of the Diocese. When there is no 
Bishop in charge of a Diocese, as might happen in case of a vacancy 
in the See, or in case of prolonged absence, or disability of some 
kind on the part of the Bishop, there is further imposed upon the 
Committee the duty of acting as the Ecclesiastical Authority of the 
Diocese. Of course the time and occasion of assuming the position 


IN WHAT SENSE “ECCLESIASTICAL AUTHORITY.” 73 


ot Ecclesiastical Authority in a Diocese are not left to the deter- 
taination of the Committee, but are designated by Canon; the Con- 
stitution providing that when there is no Bishop in charge, the 
Committee “shall be the Ecclesiastical Authority of the Diocese for 
all purposes declared by the General Convention.” 

That declaration is made by Canons devolving on the Com- 
witee certain duties which would, under other circumstances than 
those designated, be performed by the Bishop. Yet those duties are 
not such as belong to the Bishop as Bishop, but duties which 
belong to him as being in charge of the Diocese—that is to say, 
they relate to matters of exterior jurisdiction, and not to matters of 
spiritual jurisdiction. ‘There are necessarily affairs of temporal 
concern which naturally or canonically are dependent upon the 
Episcopal care when there is a Bishop in charge; but when that is 
not the case these affairs must either be postponed and neglected, or 
given into the care of others who may be fitted to discharge them, 
even though not qualified for the discharge of Episcopal Authority 
properly so called. And this is what is meant by making the Stand- 
ing Committee the Ecclesiastical Authority of the Diocese under 
circumstances canonically specified. The jurisdiction thus held is 
much of the same sort as that which in England resides in the 
Chapter during the vacancy of a See; and involves the management 
of certain Diocesan affairs which would be managed by the Bishop 
if the See were full. Only it is to be observed that such jurisdic- 
tion as the Standing Committee has is purely statutory in its na- 
ture, and involves no power beyond that which by Constitution and 
Canons is specifically conferred upon it. 

Beside these Standing Committees of Diocesan appointment, 
there are certain others which are provided for in the Canons of 
General Convention to fulfill somewhat analogous functions in the 
Missionary Districts of the Church, and in the regulation of affairs 
connected with the administration of the Churches or Chapels 
designed for the use of members of the Church sojourning in 
foreign countries other than Great Britain and Ireland. These 
Standing Committees are not those referred to in Article IV. of 
the Constitution, which we are now considering, and should not 
be confused with them. Their canonical creation is the result of 
the exercise, by the common government of the Church, of that 


74 ARTICLE IV. STANDING COMMITTEES. 


care over its dependencies which is the common responsibility of 
all the Dioceses. That care is exercised in the case of the Mis- 
sionary Districts by the appointment of Missionary Bishops to 
oversee and direct them in their development; and, with a view 
to the making of that oversight and direction more effective, the 
Missionary Bishops are authorized to appoint and associate with 
themselves such Committees. In the case of the foreign Churches, 
one such Committee is authorized to be appointed by a Convocation 
of Clergy and Laity representing those Churches: and here the 
object is plainly to provide some recognized medium of communi- 
cation between them and the Presiding Bishop, or other Bishop of 
this Church to whose care they are by Canon entrusted, and to 
aid him in the discharge of the duties involved in that trust. (Cf. 
Tit. I., Can. 19, Secs. vi [5] and vii [7], and Tit. IIT, Can. 3, 
See. 111.) 


ADMISSION AND RE-FORMATION OF DIOCESES. 75 


ARTICLE V. 


ADMISSION AND RE-FORMATION OF DIOCESES. 


An amended fifth Article to the Constitution proposed in 
1898, not being ratified in 1901, the former Article of that num- 
ber remained in force. It will be most easily understood by refer- 
ence to the several stages of its historical development. 

The Article stood as Article 5 in October, 1789, in the follow- 
ing words: 

““A Protestant Episcopal Church in any of the United States, 
not now represented, may at any time hereafter be admitted on 
aeceding to this Constitution.” 

Exactly in this form the Article had been adopted in the 
session of the previous August, and the same sentence with an 
additional clause, which will be noticed later, has been retained 
in the Article to the present time. In Article VII. of the pre- 
ceding drafts of 1785 and 1786 the same thing was provided for 
in the following language: 

“A Protestant Episcopal Church in any of the United States 
not now represented, may at any time hereafter be admitted, on 
acceding to the Articles of this union.” 

The clause just referred to as added to the Article of 1789 
consisted of the words “or any Territory thereof,’ inserted after 
the word “States,” so that the Article read, “A Protestant Hpisco- 
pal Church in any of the United States or any Territory thereof, 
not now represented, may, at any time hereafter, be admitted on 
acceding to this Constitution.” The extension of the right of ad- 
mission to the Church in any Territory of the United States, as 
well as to the Church in any of the States, met the case of a Church 
in a Territory which might be ready to seek admission into the 


76 ‘ARTICLE V. ADMISSION AND RE-FORMATION OF DIOCESES. 


Ecclesiastical Union, before the Territory had been, or was ready 
to be, admitted as a State in the Civil Union; this condition having 
been in fact attained in the case of the Church in the Territories 
of Michigan (1832), and Florida (1838). But as adopted in 
1789( and amended by the reference to the Territories, the Article 
remained for many years, until without being repealed or changed, 
it was included in an amended Article, which added to it a long 
series of provisions relating to an entirely different matter. The 
first paragraph of this amended Article is, “A Protestant Episco- 
pal Church in any of the United States, or any Territory thereof, 
not now represented, may, at any time hereafter, be admitted on 
acceding to this Constitution; and a new Diocese, to be formed 
from one or more existing Dioceses, may be admitted under the 
following restrictions, viz.;.”” Then follow four extended para- 
graphs of specification under the second branch of this para- 
graph. 

It is obvious, both from its history and its language, that the 
Article, as thus amended, provides, first, for the case of the admis- 
sion of a Church in a State or Territory not already represented ; 
and, second, for the case of the admission of a new Diocese formed 
from one or more existing Dioceses; and these cases are essentially 
distinct, although the distinction has not always been observed 
since it was introduced by the amendment last noted. In the case 
of an admission of a Church in a State or Territory not before 
represented, there is one only condition prescribed, and that is 
that it should accede to the Constitution. There is not even re- 
quired by the Constitution any formal Act of General Conven- 
tion by way of consent to the admission. The propriety of such 
an act may be argued from analogy or on other grounds, but, 
proper as such an act may perhaps be, the recognition of the pro- 
priety involves no right on the part of General Convention to 
refuse to admit. The Constitution has once for all given the 
requisite permission, and a Church so situated, on acceding to the 
Constitution, has the right to avail itself of the permission once 
for all given. Its duly accredited Deputies may take their seats in 
the House of Deputies; and its Bishop, if it have one, may take 
his seat in the House of Bishops, without let or hindrance. 

The amendment proposed in General Convention in 1898, but 


CONDITIONS IMPOSED ON GENERAL CONVENTION. var 


not ratified in 1901, was so framed, presumably with intention, 
as quite to obliterate the distinction which has been noted. (Jour- 
nal, 1901, p. 232.) And although the proposed amendment did 
not prevail, yet another amendment was proposed in 1901 which 
is to be acted on in 1904, which, as to this point, is to the same 
effect, prescribing several additions to the conditions of admission, 
and providing explicitly for “the consent of the General Conven- 
tio. * * * under such conditions as the General Convention 
shall prescribe by general Canon or Canons.” (Journal, 1901, Dp: 
572.) Perhaps it is time that the distinction should be done away 
with, and that the Constitution should recognize the necessity for 
some formal consent of General Convention, and for prescrib- 
ing additional conditions upon which that consent should be given. 
Still there is something of a parable in the difference of the atti- 
tude of Churches in the Union toward those out of it, now and in 
former times. Meanwhile, however, the distinction exists, and all 
of the four paragraphs which follow the first in the present Arti- 
cle V, are qualifications of the provision that “a new Diocese to be 
formed from one or more existing Dioceses, may be admitted un- 
der the following restrictions, viz.: 

To speak as briefly as possible of these restrictions it may be 
observed that the first is that no new Diocese shall be formed 
within the limits of another Diocese, nor by the junction of two or 
more Dioceses, or parts of Dioceses, unless with the consent of the 
Bishop and Convention of each of the Dioceses concerned. This 
consent having been given, there is next to be given the consent of 
General Convention ; and General Convention is authorized to give 
this consent upon certain specified conditions, and not otherwise. 
These are(1), that it have satisfactory assurance of suitable pro- 
vision for the support of the Episcopate in the new Diocese; (2) 
that the new Diocese shall have a prescribed number of Parishes 
and Presbyters, and that no such Diocese shall be formed if there- 
by any existing Diocese shall be so reduced as to contain less than 
a specified number of Parishes and Presbyters; and (3) that no 
city shall form more than one Diocese. 

The Article then provides that where a Diocese is divided into 
two or more, the Diocesan of the divided Diocese may elect the one 
to which he will be attached, and that the Coadjutor, if there be 


78 ARTICLE VY. ADMISSION AND RE-FORMATION OF DIOCESES. 


one, shall take the other of two, or have his choice between the 
others if there be more than two. The remaining paragraph pro- 
vides for the retaining by new Dioceses of the Constitution and 
Canons of the old Diocese, from which they have been formed, 
until the same be changed; or, if a new Diocese be formed out of 
two or more existing Dioceses, it is to retain the Constitution and 
Canons of that Diocese which had the greater number of Clergy 
prior to the erection of the new Diocese, until the same be changed 
by the new Convention. 


MISSIONARY DISTRICTS, 19 


ARTICLE VI. 
MISSIONARY DISTRICTS. 


The provisions of Article VI. are entirely new in the Consti- 
tution, although the substance of a part of them was previously 
embodied in Sec. vi. of Canon 19 of Title I. of the Digest. The 
Article relates to the assignment or apportionment of territory 
included within Missionary Districts; authorizes the House of 
Bishops to establish Missionary Districts in such territory as may 
not be under Diocesan care, and to canonically redistribute the 
territory ; empowers General Convention to accept cession of part 
of the territorial jurisdiction of a Diocese, and to cede back such 
jurisdiction, under specified conditions; and supplies a constitu- 
tional basis for future legislation of General Convention in regard 
to the organization of Missionary Districts when established. 

Under Section 1 the House of Bishops has power to “estab- 
lish Missionary Districts in States and Territories or parts thereof 
not organized into Dioceses. It may also from time to time change, 
increase, or diminish the territory included in such Missionary 
Districts ;’ although it may not exercise this latter power merely 
of its own motion, but “in such manner as may be prescribed by 
Canon.” In other words, in any State or Territory not organized 
into a Diocese the House of Bishops may establish a Missionary 
District ; and that Missionary District need not include the whole 
of such State or Territory, but may include only that part of such 
State or Territory in which the House of Bishops may think 
proper to establish the District. But the District once established 
in accordance with this authority, the House of Bishops can pro- 
ceed in respect to the change, increase, or diminution of the ter- 
ritory included within it, only in such manner as may be pre- 
scribed by Canon. 

It may not be amiss 1o consider, in passing, the bearing of 
this power of establishment, and change of the territorial limits of 


80 ARTICLE VI. MISSIONARY DISTRICTS. 


Missionary Districts, upon what may be regarded as the hitherto 
settled policy of this Church in respect of the inclusion of Dioceses 
within the boundaries of the States composing the Civil Union. 
It will probably not be questioned that from the very earliest, 
even Apostolic times, the custom of the Church has been to note 
the salient points of Civil jurisdiction, and to plant the Church 
at these points as affording the most suitable and effective centres 
from which its influence might spread. Whatever might have been 
the motive which produced the fact, the fact itself is venerable; and 
can hardly fail to be regarded as indicating a policy entitled always 
to be most respectfully considered, and not to be abandoned in 
principle without the gravest and most urgent reason. And it is 
plain that the Church in this country in the organization of its 
working system, while it did not follow the primitive rule, did 
most entirely act upon the primitive principle in this respect. It 
did not select the city as the seat or Diocese of the Bishop, the base 
of its operation, and the unit of its organization, according to the 
primitive practice; because the city was not, as it had been in the 
primitive times, the unit of the civil organization in which its work 
was to be done; but it selected the State, to which it stood in the 
process of its organization in the same relation as the primitive 
Church had held to the city. The State, in fact, was the unit of 
the civil system within which the Church was to work; and the 
Church in the State became, in fact, the unit of the Ecclesiastical 
System, the Diocese being conterminous with the State. And 
while in process of time, and under the exigencies of the needs of 
the growing Church, Dioceses have been multiplied in the regions 
of the older settlements ; yet the increase has been by the formation 
of new Dioceses out of those before conterminous with States. In 
no instance, it is believed, has a new Diocese been so formed as to 
include parts of two States; and thus in principle the primitive 
policy has not been abandoned, although the mode of its appli- 
cation has necessarily been changed. 

Such adherence is not a little remarkable, and especially so 
in view of the fact that it has never been enjoined either by Con- 
stitution or Canon. More than this, it has continued, notwith- 
standing the fact that it would have been quite within the letter 
of the Ecclesiastical law that a new Diocese should have included 


PRIMITIVE RULE OR PRIMITIVE PRINCIPLE? 81 


territory within two adjoining States. The Constitution has for 
some years authorized the formation of a new Diocese out of one 
or more existing Dioceses; so that it would have been constitu- 
tionally possible to have formed a Diocese out of adjacent parts of 
two or three States, previously in as many different Dioceses. There 
seems in fact to have been a sort of instinct in the matter, and 
perhaps we are justified in the hope that the guidance of the future 
may be in the same direction. 

Still the possibility of departure from this policy, under the 
pressure of what may appear to be particularly expedient, seems to 
be much increased by the provisions of Article VI., to which ref- 
erence has now been made. If we consider that a Missionary Dis- 
trict is ordinarily, and is expected to be, a Diocese in the future, 
and reflect that it is quite within the constitutional rights of the 
House of Bishops to establish a Missionary District in a part of 
a State or Territory not organized as a Diocese, it is easy to see 
that a part of one such State or Territory might be established 
with a part of another such State or Territory, in one Missionary 
District, which in time would naturally be a Diocese existing with- 
in the lines of adjacent States. So far as this possibility is en- 
hanced by the power to change, increase, or diminish the territory 
included in a Missionary District, it may of course be recognized 
and limited by the canonical action required by the Article. The 
Constitution, however, either in this Article VI., or in Article V., 
which regulates the formation of a new Diocese out of one or more 
previously existing, makes no provision against the inclusion of a 
Diocese within the lines of adjacent States. In Article V. there is 
a provision which seems to have had in mind the observance of 
primitive rule in the requirement that “no city shall form more 
than one Diocese.” But it is an instance of what is not altogether 
unknown in other cases, namely, the adoption of a primitive rule, 
without due apprehension of the principle of that rule. The proper 
application of the principle in this case would have been the pro- 
vision that no Diocese should be situated within more than one 
State. The proposed amendment to Article V., which is to come 
up in 1904, and to which reference has already been made, appears 
to recognize the fact that it is not necessary to provide that no 
city shall form more than one Diocese, since it excludes that pro- 


82 ARTICLE VI. MISSIONARY DISTRICTS. 


vision. The proposal of that amendment furnishes an excellent 
opportunity for the inclusion of a provision to the effect that no 
Diocese should be within more than one State. 

Whether the opportunity may not also be properly taken in 
the final shaping of that amendment, or, possibly, of an amend- 
ment to the present Article VI., to recognize the distinction, which 
exists in several respects, between the Missionary work of the 
Church in such Territories as are in the outlying regions of the 
States composing the Civil Union in North America, and such 
Territories of the United States as are situated in other parts of 
the world, is a question which must he left to the wisdom of those 
upon whom the responsibility of deciding it rests. It is merely 
noted here that, under the present provisions of Article VI. the 
House of Bishops has the right to establish Missionary Districts 
in those remote Territories; and that, under the present provis- 
ions of Article V., the Church in one of those Territories has the 
same right of admission to the Ecclesiastical Union on acceding 
to the Constitution, as is now possessed by the Church in a Terri- 
tory in this country. Of course the probability of such a proceed- 
ing may be considered to be at least as remote as the Territories 
themselves; but the suggestion does not detract from the desira- 
bility of the amendment already proposed to Article V., though 
it furnishes food for thought as to the means of shaping that 
amendment so as best to promote its efficiency. 

Section 2 of Article VI. recognizes the fact that a Diocese may 
have a larger territorial jurisdiction than it can care for, and that 
it may become desirable that a part of it should be transferred to 
the care of General Convention. The territory so transferred would 
then occupy the same position as territory wherein the Church was 
not organized as a Diocese; and would be subject to the establish- 
ment within it of a Missionary District by the House of Bishops 
under Section 1. In order to the accomplishment of such a trans- 
fer, should it be thought expedient, Section 2 confers the power 
upon General Convention to accept a cession proposed by a Diocese 
with the consent of three-fourths of the Parishes in the ceded terri- 
tory, and of the same proportion of the Parishes in the remaining 
territory of the Diocese. Provision is made also for the retransfer 
or retrocession of the territorial jurisdiction when that shall have 


CESSION AND RETRO-CESSION. 83. 


appeared expedient; and both the cession and the retro-cession 
provided for are subject to the same conditions, involving the 
consent of the Diocese and of the General Convention. The con- 
sent of the Diocese to the retro-cession is to be shown by the con- 
sent of three-fourths of the Parishes in the ceded territory and 
also in the remaining territory of the Diocese, since the retro-ces- 
sion is to be ‘‘by such joint action of all the several parties as is 
herein required for its cession.” And both in cession and in retro- 
cession the action of the General Convention is required to be “by 
a vote of two-thirds of all the Bishops present and voting,” and 
“by a vote of two-thirds of the House of Deputies voting by or- 
ders;” that is to say, by the concurrence of two-thirds of the 
Dioceses represented by Clergy, with two-thirds of the Dioceses 
represented by Laity. 

By Section 3 it is required that Missionary Districts, estab- 
lished as provided for in the previous part of the Article, shall be 
organized as may be prescribed by Canon of the General Conven- 
tion. In whatever form the Missionary work of the Church in 
such Districts is to be carried on, that form is to be prescribed by 
Canon of General Convention. The legislative power of the Gen- 
eral Convention is thus so extended as to give to it the constitu- 
tional right to make due provision for the administration of the 
working system of the Church in the Missionary Districts. 


84 PROVINCES. 


ARTICLE VII. 


PROVINCES. 


Article VII. furnishes a constitutional basis for legislation by 
General Convention in regard to the establishment of Provinces. 
It does not specify what the Province, in this use of the word, is; 
what need it is intended to supply ; what function it is to perform; 
nor by what means, or in what manner it is to act. The presump- 
tion appears to be, as to the first point, that it is matter of com- 
mon knowledge; and, as to the others, that information will in 
due time be given by General Convention. The second of these 
presumptions is probably correct, though the first perhaps may be 
open to some doubt. But considering the novelty of this institu- 
tion as a constitutional feature of our system, and the tremendous 
possibilities which the introduction of it involves, the thought 
occurs that something more precise than a remission of the whole 
subject to the legislature, might naturally have been expected in 
the Constitution. Three important points, however, are settled by 
this Article. These are (1) that action of General Convention-in 
this matter has now the basis of a constitutional provision which 
otherwise it would have lacked; (2) that Missionary Districts as 
well as Dioceses may be grouped into Provinces, though whether 
together or separately is presumably left to General Convention to 
determine; and (3) that no Diocese shall be included in a Proy- 
ince without its own consent. The Article is as follows: 

“Dioceses and Missionary Districts may be united into Proy- 
inces in such manner, under such conditions, and with such pow- 
ers as shall be provided by Canon of the General Convention; 
provided, however, that no Diocese shall be included in a Province 
without its own consent.” 

The question of the establishment of Provinces is one which 
has been under discussion among us for about thirty or forty years, 


REASONS SENTIMENTAL AND PRACTICAL. 85 


and during that period it has been the subject of a good deal of 
thought, of many able and learned papers, of frequent debate in 
General Convention, and of the incubation of important Commit- 
tees and Commissions. The reasons for its agitation may, perhaps, 
without disrespect, be described as having been partly sentimental 
and partly practical. 

In the estimation of some, the System of the Church in this 
country has suffered by comparison with the Systems of the 
Churches of other countries and other ages; and this sentiment 
has been cherished in certain quarters apparently without sus- 
picion that the Providence of God and the guidance of His Holy 
Spirit might have been as effectual in the American System, as in 
any of the other systems known to Ecclesiastical history; and that 
there might be a higher ambition for an American Churchman 
than to assimilate foreign customs instead of acting up to domes- 
tic responsibilities. 

But apart from the sentimental aspect of the case, the intro- 
duction of Provinces has been urged upon practical considerations, ~ 
founded perhaps chiefly upon the magnitude of the field to be 
cared for, and the difficulty of making the requisite care effective 
without some additional machinery for the purpose of bringing 
the influences of government into closer connection with the work 
to be carried on, and with the emergencies naturally growing out 
of it. The things urged as particularly needed, and likely to be 
thus promoted, have been a more particular subdivision of Dioceses 
and Districts, an increase in the number of Bishops, a closer asso- 
ciation between the various parts of the great jurisdictions, with 
the attendant development of legislative and judicial functions; 
involving the introduction of Synodical gatherings intermediate 
between the Diocesan and the General Convention, and the estab- 
lishment of a system of Appellate jurisdictions. 

As to the means by which these ends were to be attained, there 
have been two opinions; one, that since the Constitution contained 
no limitation in this particular of the rights of the Dioceses, it 
was quite within the power of any Diocese to associate itself with 
others in the form of a Province; and quite within the power of 
such association to make legislative or judicial arrangements for 
itself, provided that these should not contravene the Constitution, 


86 ARTICLE VII. PROVINCES. 


or the Canons of General Convention: the other, that in order to 
give force and validity to an association which would otherwise 
rest merely upon the consent of those concerned in it, it was 
necessary that such association should be constituted by General 
Convention. Under the influence of the former opinion the Dio- 
ceses in the State of Illinois associated themselves into a Province; 
under the influence of the latter, General Convention provided for 
the establishment of a Federate Council to be constituted by the 
Dioceses within the State of New York; designed to satisfy to 
some extent the craving for Provincial Association—though, in 
the nature of the case, to a very limited extent. Both of these 
steps in the Provincial direction were, it will be observed, within 
State limits, though there have not been wanting plans and pro- 
jects presented in General Convention for the grouping together 
of portions ef the country irrespective of State boundaries and on 
what were urged as grounds of practical convenience. 

The prevailing opinion being that the matter of Provincial 
- association required the action of General Convention, it is prob- 
able that such action would have been taken, except for one con- 
sideration; which was that inasmuch as the Constitution had left 
the power of prescribing the mode of trial of Presbyters and Dea- 
cons to the Diocesan Conventions, it was impossible for General 
Convention to make full legislative provision for the establish- - 
ment of Appellate Courts, without infringing upon the right of a 
Diocese to provide a system of appeals for itself, as included with- 
in the power to prescribe its own mode of trial. Numerous efforts 
for the establishment of Appellate Courts by General Convention 
have been withstood by the bulwark furnished by the old Article 6; 
and as a Provincial system without the characteristic of Appellate 
jurisdictions would have been a sort of Hamlet without Hamlet, 
it was more convenient at least that the establishment of Proy- 
inces should be made the subject of a constitutional provision 
which should go hand in hand with an amendment relating to the 
judicial function, and devolving the regulation of this, as well as 
of the matter of Provinces, upon the General Convention. 

Such, at any rate, has been the outcome in fact of the pro- 
tracted process of preparation for the inauguration of a Provincial 
system. The Constitution in its present amended form has de- 


DETAILS AND DIGNITIES. 87 


volved upon General Convention the right to provide by Canon 
both for the establishment of Provinces (Art. VII.) and for the 
establishment of Courts of Review and Appeal, Art. IX.), and 
under the operation of these two powers there is nothing to hinder 
the introduction into our system of all the details and digni- 
ties which have ever complicated the administration of Church 
affairs in East or West, in ancient, medieval, or modern times— 
nothing, that is to say, but the wisdom of General Convention, 
upon which, under presupposed Divine guidance, one may doubt- 
less repose in hope and faith. Still, human nature is not per- 
ceptibly weaker than it has hitherto been; and human nature be- 
ing what it is, the processes developed out of the simplicity of the 
original Provincial system, are not incapable of being reproduced 
in later times; a very small measure of which reproduction might 
make the little finger of the administration of the future, thicker 
than the loins of that of the past. 


88 MINISTERIAL CHARACTER AND QUALIFICATIONS. 


ARTICLE VIII. 


TESTS OF MINISTERIAL CHARACTER AND 
QUALIFICATIONS. 


The character and qualifications of those admitted to the 
Ministry in any part of the Church, are of common concern to all 
parts of the Church; and hence a requirement of some test of due 
preparation for the work of the Ministry, and of some profession 
of adherence, on the part of those undertaking it, to common 
standards of Faith and Order, is properly inserted in the Consti- 
tution. The propriety of such a requirement has been recognized 
from the beginning of our System, and its adoption was in effect 
but the adapting to our practice of a similar custom in the Church 
of England. The Draft Constitutions of 1785 and 1786, each 
devoted an article to the subject; and Article 7 of the Constitution 
of 1789 put the tradition into that form which it has ever since 
retained until the recent revision. The Article as it now stands, 
being numbered VIII., is in purpose and general tenor the same 
as that which preceded it, although it contains certain significant 
changes. It is proposed to quote the Article by paragraphs, and to 
note the variations in order. The first paragraph is as follows: 

“No person shall be ordered Priest or Deacon until he shall 
have been examined by the Bishop and two Priests and shall have 
exhibited such testimonials and other requisites as the Canons in 
that case provided may direct. No person shall be ordained and 
consecrated Bishop, or ordered Priest or Deacon, unless at the 
time, in the presence of the ordaining Bishop or Bishops, he shall 
subscribe and make the following declaration :” 

The language of the former Article was: “No person shall be 
admitted to Holy Orders until he shall have been examined 
* * * nor shall any person be ordained until he shall have sub- 
scribed the following declaration.” This wording was open to the 


RENEWALS OF DECLARATION. 89 


construction, to which it is believed the usual practice has been 
conformable, that there was required but one subscription, which 
was to be made on admission to Holy Orders—that is, at the ordina- 
tion to the Diaconate. Under the present wording it is made 
clear that the declaration is to be renewed at the succeeding or- 
dinations to the Priesthood and to the Episcopate. It is further 
required by the wording of the Article that the Ordinand shall 
not only at some time previous have subscribed the declaration ; 
but further, that he shall “at the time” of the ordination, “in the 
presence of the ordaining Bishop or Bishops * * * subscribe 
and make”’ the declaration, which is as follows: 

“T do believe the Holy Scriptures of the Old and New Testa- 
ments to be the Word of God, and to contain all things necessary 
to salvation; and I do solemnly engage to conform to the Doc- 
trine, Discipline and Worship of the Protestant Episcopal Church 
in the United States of America.” 

The declaration as it stood before spoke of “the Holy Scrip- 
tures of the Old and New Testament” and promised conformity to 
the “Doctrines and Worship.” In the present statement of it the 
word Testament is put in the plural as better corresponding with 
the terms Old and New; and the phrase “Doctrine, Discipline and 
Worship,” is substituted for “Doctrines and Worship.” Probably 
the intent of the former phrase was the same as that of the pres- 
ent; but the present expression is more specific. 

The concluding paragraph of the Article is: 

“No person ordained by a foreign Bishop, or by a Bishop not 
in Communion with this Church, shall be permitted to officiate 
as a Minister of this Church until he shall have complied with the 
Canon or Canons in that case provided and also shall have sub- 
scribed the aforesaid declaration.” 

According to the Preface to the Ordinal, “No man shall be 
accounted or taken to be a lawful Bishop, Priest or Deacon in this 
Church, or suffered to execute any of the said functions, except he 
be * * * admitted thereunto, according to the Form here- 
after following’—which is to be administered by a Bishop or 
Bishops—“or hath had Episcopal Consecration or Ordination.” 
This, of course, implies that there may be those who, without the 
use of this particular Form, have been duly ordained by Bishops 


90 ARTICLE VIII. MINISTERIAL CHARACTER AND QUALIFICATIONS. 


possessing a valid Episcopate, and that these have equal capacity 
for the exercise of their Ministry with such as have been ordained 
by Bishops with this Form. It is manifest, however, that those 
ordained by foreign Bishops, or Bishops not in communion with 
this Church, although they may have the capacity, have not the 
right to use that capacity in this Church without some special 
permission therefrom; because many things might have occurred 
since their ordination in a foreign land or a foreign communion, 
as to which information would not exist here, and which might 
make the exercise of their Ministry in this Church not conducive 
to edification. It is to avoid difficulties such as might thus arise 
that the Constitution here provides that the admission to the 
exercise of the Ministry in this Church by those who have been 
ordained under the circumstances designated, shall be matter of 
canonical regulation, and shall also be preceded by subscription of 
the same declaration as is required to be made and subscribed by 
all persons ordained in this Church. 

This paragraph of Article VIII. differs from the correspond- 
ing paragraph of Article 7, in respect of a slight verbal alteration, 
and also in respect of the insertion of the clause, “or by a 
Bishop net in Communion with this Church,” which the former 
Article did not contain. 


DISCIPLINE OF THE CLERGY. 91 


ARTICLE IX. 
DISCIPLINE OF THE CLERGY. 


The discipline of the Clergy, to which the former Article 6 
related, is treated of in Article IX. of the present Constitution. 
Although’ the process of revision has left but little of the old 
Article, yet enough remains to connect the two in regard both to 
the range and distribution of judicial jurisdiction, and to make 
the history of Article 6, not without value in the effort to appre- 
ciate the significance of Article IX. 

To be as brief as possible, it needs only to be noted that in a 
period of one hundred and sixteen years the Constitutional pro- 
vision on this subject has been four times changed. In the pre- 
liminary stage of the Draft Constitutions, it was proposed in 1785, 
in a form which was amended in 1786. In 1789 it was established 
in a new form, and as so established continued in force until 1841, 
when it was put into the shape which it retained until 1901. 

In 1785, as Article VIII it read: “Every Clergyman, 
whether Bishop or Presbyter or Deacon, shall be amenable to the 
authority of the Convention in the State to which he belongs, so 
far as relates to suspension or removal from office; and the Con- 
vention in each State shall institute rules for their conduct, and 
an equitable mode of trial.” 

In reference to this Article, submitted with other matters in 
connection with an application for Consecration, the Archbishops 
of Canterbury and York, in a letter to the members of the Conven- 
tion, laid before that body in 1786 (Bioren, pp. 34, 35.), make the 
following observations: 

“We should be inexcusable, too, if at the time when you are 
requesting the establishment of Bishops in your Church, we did 
not strongly represent to you that the eighth Article of your Eccle- 


92 ARTICLE IX. DISCIPLINE OF THE CLERGY. 


siastical Constitution appears to us to be a degradation of the 
clerical, and still more of the Episcopal character. We persuade 
ourselves that in your ensuing Convention some alteration will be 
thought necessary in this Article, before this reaches you; or if 
not, that due attention will be given to it in consequence of our 
representation.” 

The persuasion of the Archbishops was realized, in so far as 
that before their letter reached the Convention that body had 
amended the eighth Article by the addition to it of the following 
sentence: 

“And at every trial of a Bishop there shall be one or more of 
the Episcopal Order present, and none but a Bishop shall pro- 
nounce sentence of deposition or degradation from the Ministry on 
any Clergyman, whether Bishop, or Presbyter, or Deacon.” (Bio- 
ren, p. 25.) 

Further change than this, the Convention apparently thought 
not required by due attention to the representation of the Arch- 
bishops; for, after the reading of the letter, the question whether 
the Article should remain as already proposed, was unanimously 
determined in the athrmative. (Bioren, p. 42.) 

The subject of Clerical discipline thus came before the Gen- 
eral Convention of 1789, with the plain presentation of two sug- 
gestions; first, that the Clergy of whatever Order, in any State, 
were to be amenable to the Convention of the Church in that State; 
and, secondly, that in the administration of discipline the Episco- 
pate was to be so far recognized as that one or more Bishops should 
be present at the trial of a Bishop, and that no sentence should in 
any case be pronounced except by a Bishop; and these suggestions 
were with some modification adopted. 

Another suggestion was presented by the proposed Constitu- 
tion, which was in part ignored, and in part adopted in 1789; and 
that was that the Convention in each State should institute rules 
for the conduct of the Clergy and an equitable mode of trial. The 
amenability of the Clergy certainly imphed that there should be 
rules for their conduct, and some mode of holding them responsi- 
ble for the disregard of those rules. But that in a union such as 
was contemplated there should be different rules in the different 
States to serve as a basis of their accountability was not desirable; 


ARTICLE 6. 1789—1841. 93 


and probably from the feeling that the grounds upon which a trial 
might be based should be the same for all the Clergy wherever 
resident, this part of the suggestion before the Convention of 1789 
was not adopted, although that body acted on the suggestion 
that the State Convention should institute the mode of trial for 
the Clergy of that State. 

Article 6, then, first appears in the Constitution of 1789, in 
the following words: 

“In every State the mode of trying Clergymen shall be insti- 
tuted by the Convention of the Church therein. At every trial of 
a Bishop there shall be one or more of the Episcopal Order pres- 
ent; and none but a Bishop shall pronounce sentence of deposi- 
tion or degradation from the Ministry on any Clergyman, whether 
Bishop, or Presbyter, or Deacon.” 

It will be observed that the recognition of the Episcopate in 
this Article is precisely the same as had been proposed in 1786; 
and that the position taken with reference to the action of the 
Convention in the State, while it discarded the unwholesome idea 
that the clergy were amenable to the Convention in all that related 
to suspension or removal from office, which might have resulted in 
direct judicial action on the part of the Convention, nevertheless 
retained and firmly established the idea that this Convention had 
the sole power of instituting the mode in which the trial should 
proceed, which was to hold for the Convention of the Church in 
the State, as distinguished from the General Convention, or any 
other authority, the right of legislation on this subject. In this 
form the Article continued until toward the middle of the nine- 
teenth century, the change of the word State into the word Diocese 
being made in this as in the other Articles. 

By this time, however, the incongruity of leaving the Bishops 
on the same footing with the other Clergy in this matter, appears 
to have been realized; and the ideas that there should be guaran- 
teed to a Bishop the same right of trial by his peers as was, in 
fact, generally possessed by the other Clergy, and that there was a 
fitness in making the relation of the Bishops to General Conven- 
tion, correspond with the relation of the other Clergy to the Con- 
vention of the Diocese (and possibly other ideas), gained ground. 
In 1838, on the motion of Bishop Doane of New Jersey, (Journal, 


94 ARTICLE IX. DISCIPLINE OF THE CLERGY. 


1838, p. 115), an amendment to this Article was proposed, which 
claimed for the General Convention the right of legislation as to 
the mode of trying Bishops, leaving the right of the Diocesan Con- 
vention untouched in the matter of legislation with regard to the 
mode of trial of Diocesan Clergy, and which claimed further the 
right of a Bishop to be tried by a court composed of Bishops only; 
and this proposal, after the usual submission to the Diocesan Con- 
ventions, was ratified and adopted by the Church in the General 
Convention of 1841; and the article, in the form in which it was 
then adopted, continued in force until the action taken in 1901. 
It was as follows: 

“The mode of trying Bishops shall be provided by the Gen- 
eral Convention. The court appointed for that purpose shall be 
composed of Bishops only. In every Diocese the mode of trying 
Presbyters and Deacons may be instituted by the Convention of 
the Diocese. None but a Bishop shall pronounce sentence of ad- 
monition, suspension, or degradation from the Ministry, on any 
Clergyman, whether Bishop, Presbyter, or Deacon.” 

In view of its terms and its history this Article establishes 
two facts; first, that the power to institute the mode of trial of 
the Presbyters and Deacons in every Diocese, which had by the 
Constitution been recognized from the beginning as possessed by 
the Convention of the Diocese, was retained unimpaired by that 
body; and, secondly, that the power of instituting the mode of 
trial of a Bishop was abandoned by the Dioceses and vested in 
General Convention. The Article also establishes certain princi- 
ples; namely, (1) that the power thus recognized and conferred 
was strictly and properly a legislative power, and indicated no 
judicial authority either in the Diocesan or the General Conven- 
tion, since power to provide or institute a mode of trial is essenti- 
ally distinct from the power to try; (2) that Bishops were not to 
be judged except by Bishops; (3) that sentence was in no case 
to be pronounced on any Clergyman, Bishop, Presbyter or Deacon, 
except by a Bishop; and (4) that the legislative and judicial 
functions recognized and conferred by the Article had reference 
solely to the decision of questions involved in the discipline of the 
Clergy. 


FACTS AND PRINCIPLES ASSUMED IN 1901. 95 


The new Article [X. implicitly assumes the facts above noted, 
although the distinction of powers resulting from them is ex- 
pressed in different language; it assumes also the principles in- 
volved in the former Article, and it introduces certain new matter. 
It will be convenient to note these particulars in the consideration 
of the Article under the three divisions into which it appears to 
resolve itself, as it relates to (1) Trial Courts, (2) Appellate 
Courts, and (3) Sentences. 

(1) The first two paragraphs are as follows: 

“The General Convention may, by Canon, establish a Court 
for the trial of Bishops, which shall be composed of Bishops only. 

“Presbyters and Deacons shall be tried by a Court instituted 
by the Convention of the Diocese, or by the Hcclesiastical Author- 
ity of the Missionary District in which they are canonically resi- 
dent.” 

Obviously the distinction between the sphere of action of the 
General Convention and of the Diocesan Convention declared in 
the old Article 6, is recognized in these two paragraphs; and the 
Ecclesiastical Authority of the Missionary District is given the 
same position relatively as is held by the Diocesan Convention. 

Obviously also, the principle is recognized that the power 
conferred is a legislative power. ‘The recognition is express in 
the case of General Convention, since it is empowered to act by 
Canon; and in the other cases the nature of the power is plainly 
of the same sort, since the same word is used in referring to it, as 
was used in the former Article in reference to the power there 
conferred; and since in the next paragraph the General Conven- 
tion is empowered to act, in reference to another matter, “in like 
manner,” which shows that acting by Canon, or legislative action, 
was in mind throughout the previous paragraphs. 

There is also expressly recognized the principle that in the 
trial of a Bishop the Court is to be composed only of Bishops. 
The reason in which this principle is founded is somewhat doubt- 
ful. Certainly the principle is asserted, as it was in the former 
Article 6. But whether it proceeds upon the familiar idea that 
one has a right to be tried by his peers, or upon the idea that a 
Bishop ought to be tried by Bishops, because having no superior 


96 ARTICLE IX. DISCIPLINE OF THE CLERGY. 


he would otherwise have to be tried by his subordinates, is not 
apparent. If the former idea was in mind, it seems not a little 
incongruous that no guaranty is furnished to the other Clergy in 
this matter. A Court for the trial of the subordinate Clergy, one 
would think, might be required at least to be composed of Pres- 
byters, wherein there would be some approximation to the gener- 
ally conceded right of equality. But, under the Ccnstitution, 
nothing hinders either that such a Court should be composed of 
Bishops or of laymen. 

In the comparison of these two paragraphs (which contain 
the whole Constitutional law in respect to Trial Courts) with the 
former Article, there appears a very notable difference. The for- 
mer Article empowered the General Convention to provide “the 
mode of trying Bishops,” and the Diocesan Convention to institute 
“the mode of trying Presbyters and Deacons.” The present Arti- 
cle provides for the establishment of a Court for the trial of Bish- 
ops, and for the institution of Courts for the trial of Presbyters 
and Deacons. This difference may be considered unimportant and 
merely accidental: and it may be convenient to assume that the 
same thing was intended in the present Article, as was intended 
in the former Article. But certainly so far as language is con- 
cerned, the two Articles indicate a difference in the powers con- 
ferred. To establish or institute a Court is simply to create a 
tribunal. The power to provide or institute a mode of trial, 
while it includes the power to create a tribunal, includes also a 
great deal more. What the Constitution does in these two para- 
graphs is to empower the General Convention, the Diocesan Con- 
vention, and the Ecclesiastical Authority of a Missionary District, 
to create tribunals for the trial, respectively, of Bishops, of Pres- 
byters, and of Deacons. And that is all that it does. Once estab- 
lished or instituted those tribunals are, so far as the Constitution 
is concerned, a law to themselves as to their whole mode of pro- 
cedure; a condition most extremely undesirable in respect of any 
Court, but more especially in respect of Courts which have to deal 
with particular classes or orders of men, and are liable to bias 
resulting from the professional or clique spirit, as in military, or 
naval, or clerical trials; and which are in danger of being tempted, 


PARALLEL POWERS: GENERAL AND DIOCESAN. 97 


in their desire to maintain the standards affected by those pro- 
fessions, not to be too scrupulous in the matter of means to an 
end, and in respect to the nature and range of the evidence ad- 
mitted. 

If there is a power elsewhere than in themselves to regulate 
the procedure of the tribunals whose creation is now authorized, 
it must be inferred from the power to create the tribunal. It cer- 
tainly is not expressly conferred by the Constitution. And it is 
most particularly worthy of observation that if the power of 
General Convention to regulate the procedure of a Court estab- 
lished by it for the trial of Bishops, is to be inferred from the 
power to establish such Court, then the power of the Diocesan 
Convention and the Missionary Kcclesiastical Authority, to regu- 
late the procedure of Courts instituted by them for the trial of 
Presbyters and Deacons, is equally to be inferred from the power 
to institute such Courts. . Relatively the power is the same in the 
one case as in the other; and there is no more power to be inferred 
for General Convention to prescribe rules affecting the procedure 
of Courts for the trial of Presbyters and Deacons, than there is 1o 
be inferred for Diocesan Conventions, and Missionary Hcclesiasti- 
cal Authorities, to prescribe rules affecting the procedure of Courts 
for the trial of Bishops. 

Indeed, if it may be said without disrespect, it seems worth 
saying that the new Article IX. is capable of being somewhat im- 
proved by amendment, and particularly, or generally, in respect 
of its failure to provide a much needed constitutional foundation 
for the legislation of General Convention in regard to the whole 
subject of discipline. It is to be presumed that no one objects to 
legislation on that subject by General Convention. On the con- 
trary, there are many departments of the subject that ought to be 
exclusively legislated upon by General Convention. But surely, 
in a matter that affects human rights, and interests, and feelings, 
so profoundly as this, there ought to be some Constitutional foun- 
dation for such legislation; a foundation as broad as it might be 
deemed just and wise to make it, but at any rate sufficiently plain 
to prevent us from supposing that we live under a system which 
rests upon nothing but the assumption that all legislation is in 


98 ARTICLE IX. DISCIPLINE OF THE CLERGY. 


order, whether there is any foundation for it in the Constitution 
or not. If the amendment or alteration of Article 6 had not pro- 
ceeded under the dominating influence of the one idea of opening 
the way for the establishment of Courts of Appeal, it is possible 
that the relation between the Constitution and the general disci- 
plinary legislation of General Convention would not have been so 
wholly overlooked. In respect of the authority to establish such 
Courts, which had been so long claimed and denied, some care 
has been taken to provide a foundation for the desired legisla- 
tion. 

(2) The third, fourth and fifth paragraphs of Article IX., re- 
lating to Appellate Courts, read as follows: 

“The General Convention, in like manner, may establish or 
may provide for the establishment of Courts of Review of the de- 
termination of Diocesan or other trial Courts. 

‘The Court for the review of the determination of the trial 
Court, on the trial of a Bishop, shall be composed of Bishops only. 

“The General Convention, in ike manner, may establish an 
ultimate Court of Appeal, solely for the review of the determina- 
tion of any Court of Review on questions of doctrine, faith, or 
worship.” 

In these paragraphs two kinds of Appellate Courts are pro- 
vided for; first, for review of determination of Trial Courts, and 
secondly, for review of determinations of Courts of Review on cer- 
tain specified questions. The first two paragraphs relate to the 
establishment of Courts of Review; the third relates to the estab- 
lishment of an ultimate Court of Appeal. 

The action of General Convention in regard to both these 
kinds of Court is to be taken “in like manner;” an expression 
which appears to refer to the legislative action called for in the 
previous paragraphs, and mentioned at the beginning of the Arti- 
cle as being “by Canon.” ‘The Constitution then, in the first of 
- these paragraphs now under consideration, empowers General 
Convention, acting by Canon, to establish Courts of Review of 
the determination of Diocesan or other trial Courts. The Trial 
Courts provided for in the first two paragraphs of the Article are 
for the trial of Bishops, and for the trial of Presbyters and Dea- 


COURTS OF REVIEW : COMPOSITION AND POWERS. 99 


cons either in Dioceses or Missionary Districts. A determination 
reached in any of these Courts is subject to review by a Court 
established for the purpose by General Convention. If the deter- 
mination was made by a Court for the trial of Bishops, the Court 
of Review before which that determination is to come must, like 
the Trial Court in the same case, be composed of Bishops only. 
If the determination was made by a Court for the trial of Pres- 
byters and Deacons, the Court for the review of that determina- 
tion may be composed of Bishops only, or of any or all orders com- 
bined. It may be the same Court as is to review the determina- 
tion in the case of a Bishop, or it may be another Court. Under 
the Constitution the General Convention is authorized to estab- 
lish Courts of Review; and, subject to the limitation that Bishops 
only must review Episcopal determination, General Convention 
may establish one or many Courts. Whether the establishment re- 
ferred to is that of a permanent or standing Court or Courts is 
not definitely stated. But the adjoining words may have some 
bearing on the question, for the power is not only to establish, but 
also to “provide for the establishment of Courts of Review.” 
Under this power General Convention may either establish perma- 
nent Courts of Review, or provide that in certain cases, or classes 
of cases, Courts of Review shall be constituted in a certain way. 
It is to be noted, too, that the power to provide for the establish- 
ment of Courts of Review reaches somewhat further. Taken in 
connection with the power conferred in Article VII. to constitute 
Provinces, it reaches to the point of authorizing General Conven- 
tion to provide, in constituting such Provinces, for the establish- 
ment in them, and by their action, of Courts of Review to have: 
Appellate jurisdiction over the Trial Courts of the Dioceses or 
Missionary Districts united in those Provinces. 

What powers these Courts are to have is not stated. It seems 
again to be a case of inference. Since General Convention has 
power to establish or provide for the establishment of Courts of 
Review of the determinations of Trial Courts, it may be thought 
open to inference that General Convention has power to deter- 
mine what power a Court of Review shall have; whether to review 
simply, which would seem to be needless; or to reverse or correct 
the determination of the Court below; to render a new decision 


100 ARTICLE X. DISCIPLINE OF THE CLERGY. 


accordingly, or to send back the case reviewed for a new trial; and 
whether, and how many times, the process may be repeated. These 
are points certainly which still need to be determined. 

It has been noted above as a principle involved in the former 
Article 6, and assumed by the present Article IX., that the legis- 
lative and judicial functions recognized and conferred relate solely 
to the decision of questions involved in the discipline of the Clergy. 
No power is recognized by the Constitution either in General or 
Diocesan Convention, or in Missionary Kcclesiastical Authority, to 
establish or institute Courts for the determination of—and no 
power given to Courts to determine—any manner of questions, ex- 
cept such as are involved in and dependent upon the action for 
which in a particular case a Clergyman, whether Bishop, Presby- 
ter or Deacon, is put upon trial. 

It is apparent that in such particular case there are, or may 
be, two classes of matters to be determined. First, matters of fact; 
and, secondly, matters of law. The matter of fact to be deter- 
mined is whether the Clergyman did or did not act in the way 
charged; and here it is to be remembered that, as the Clergy are 
commissioned to teach, teaching—whether by formal and public dis- 
course, or by informal and personal communication—is action. 
The matter of law to be determined is whether the action charged 
was contrary to those principles of doctrine (which presumably 
includes morals), faith, or order, which the Church has declared 
itself to have received in trust to administer; or to those rules 
which the Church has lawfully enacted in the exercise of its proper 
authority—to all of which principles and rules the Clergyman, by 
his continued membership and tenure of office in the Church, is 
presumed to have consented; and for conformity to which he is 
therefore under obligation. 

Both of these kinds of determination may be required to be 
given in the Trial Court, and the Court of Review provided for in 
the third paragraph of Article IX. has power to review the whole 
determination as to both matter of fact and matter of law; and 
no appeal lies to any higher Court as to the matter of fact; nor as 
to the matter of law, except as to questions of certain specified 
kinds. If the question is raised in the Trial Court, whether the 


ULTIMATE COURT: SENTENCES. 101 


action charged as matter of fact is, as matter of law, contrary to 
the faith which the Church has received; or to the doctrine, or 
specific teaching which the Church has founded upon that faith; 
or to the order of worship, which the Church has authorized for 
the use and benefit of those who hold that faith and doctrine, the 
determination of the Trial Court on that question may be sub- 
mitted to the Court of Review, and the determination of the Court 
of Review thereupon, may be subjected to the further review of 
what is called in the fifth paragraph of Article IX. an ultimate 
Court of Appeal. 

This Court the General Convention is empowered to estab- 
lish by Canon, and no limitation is imposed as to the composition 
of the Court, or as to its permanence, or its procedure. It is a 
Court of Appeal from determinations of Courts of Review; it is 
not a Court of Appeal from all those determinations, but only 
from such of them as are specifically designated; and as to these 
it is the ultimate Court of Appeal. 

(3) The remaining two paragraphs of Article IX. have refer- 
ence to Sentences. The paragraphs read as follows: 

“None but a Bishop shall pronounce sentence of admonition, 
or of suspension, deposition or degradation from the Ministry, on | 
any Bishop, Presbyter or Deacon. 

“A sentence of suspension shall specify on what terms or con- 
ditions and at what time the suspension shall cease.” 

The former of these two paragraphs will be recognized as a 
survival from 1841, and traceable in part back to 1789. But the 
present paragraph adds the word “deposition,” which in 1841 does 
not appear; and thereby gives a suggestion of four kinds of sen- 
tence, whereas there are but three intended—(1) admonition, (2) 
suspension, and (3) one which is commonly described by either 
of two terms, deposition or degradation. There is really no differ- 
ence in the meaning of these two terms; each of which contem- 
plates a removal or displacement from the grade or position of the 
Ministry. But deposition has a milder sound than degradation, 
which in popular acceptation carries with it the idea of moral turpi- 
tude; and since it is canonically possible for a man to be dis- 
placed from the Ministry at his own request, for reasons not 


102 ARTICLE IX. DISCIPLINE OF THE CLERGY. 


affecting his moral character, the use of the milder word has some- 
times been preferred. The point of the provision is, that of the 
three sentences known to the Church in the discipline of the 
Clergy, none is to be pronounced on any Clergyman, Bie Pres- 
byter or Deacon, except by a Bishop. 

The last paragraph is derived into the. Constitution from a 
previous Canonical provision, which prohibited a sentence of in- 
definite suspension from the Ministry. (Title IJ., Canon 10.) 

Indefinite suspension is an expression which seems to involve 
a contradiction in terms; and such a suspension is practically 
equivalent to deposition. It is hardly conceivable that such a 
sentence would be rendered by any except an arbitrary, irresponsi- 
ble and despotic power, which might perhaps suspend during its 
pleasure with a view to restoration or no restoration, as might be 
conceived desirable. However, since such sentence had in fact 
been rendered by an Episcopal Tribunal in two cases (and did, in 
fact, In one case, continue in force for seventeen years, being then 
terminated by death), the persuasion that the repetition of that 
kind of discipline was unsafe and undesirable, led to the adoption 
of a prohibitory Canon. The provision of the Canon requires a 
sentence of suspension thereafter, to “specify on what terms, or 
at what time, said penalty shall cease.’ The provision of the 
amended Constitution is that such sentence “shall specify on what 
terms or conditions and at what time the suspension shall cease.” 

As the Constitution in this case is the copy, and the Canon the 
original, and as the alternative of the Canon seems more reason- 
able than the conjunction of events required by the Constitu- 
tion, one is led to suppose that the word and in the Constitution 
has been inadvertently substituted for the word or, formerly used. 


THE BOOK OF COMMON PRAYER. 103 


ARTICLE xX. 
THE BOOK OF COMMON PRAYER. 


The Book of Common Prayer as established in the Church of 
England was, of course, in use by the members of that Church in 
the Colonies. When, after the Revolutionary War, those Colonies 
had become independent States, the members of that Church which 
had been the Church of England in the Colonies, naturally con- 
tinued the use of the same Book as part of the privilege of their 
common inheritance. They were, however, of necessity obliged 
to seek some alteration of the Book to adapt it to the different cir- 
cumstances in which they found themselves, owing to the change 
in their civil relations; and while this was on all hands acknowl- 
edged to be necessary, it was the feeling of some that it would be 
well that opportunity should be taken to make other changes than 
those which the civil conditions suggested; and changes of both 
these kinds were proposed in different quarters, and to some extent 
acted upon in the period between the recognition of the independ- 
ence of the States and the authoritative establishment of the Book 
of Common Prayer under the Ecclesiastical Constitution in 1789. 

In Connecticut, where, since 1784, there had been a complete 
Church, which was not among the number of those which were 
in process of association under a common Constitution, the mat- 
ter of needful changes in the Prayer Book came under considera- 
tion at a Convocation held on the second of August, 1785; and cer- 
tain alterations required by the change in civil conditions were 
authorized in a Pastoral letter of Bishop Seabury, dated on the 
14th of that month, and based upon the ground that “It having 
pleased Almighty God that the late British Colony of Connecticut 
should become a free, sovereign and independent State, as it now is, 
some alterations in the Liturgy and offices of our Church are neces- 
sary to be made, to accommodate them to the civil Constitution 
of the country in which we live.” 


104 ARTICLE X. THE BOOK OF COMMON PRAYER. 


At a later session of this Convocation, in September, 1786, 
Bishop Seabury set forth as “recommended to the Episcopal Con- 
gregations in Connecticut,” a Liturgy, or Communion Office, which 
differed in important respects from that of the English Liturgy of 
that day, having been adapted from the Scottish Office derived 
from the Book of Common Prayer as it had been at first estab- 
lished after the Reformation in England. (See Dr. Hart’s Re- 
print of Bp. Seabury’s Communion Office, Ed. 1883.) 

Intermediate between these two promulgations, Article IX. of 
the proposed Constitution of 1785 provided that, corresponding 
to the representation of a desire for further alterations of the 
Liturgy than those made necessary by the American Revolution, 
the English Book as changed in accordance with alterations then 
proposed and recommended to the Protestant Episcopal Church 
in the United States of America “shall be used in this Church 
when the same shall have been ratified by the Conventions which 
have respectively sent Deputies to this Convention.” (Bioren, pp. 
8, 9.) 

Article IX. of the proposed Constitution of 1786, professing 
the same reason for action on the subject, and referring to the 
Prayer Book “as revised and proposed to the use of the Protestant 
Episcopal Church, at a Convention of the said Church in the 
States of New York, New Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia and South Carolina,” provides that this Book “may 
be used by the Church in such of the States as have adopted or 
may adopt the same in their particular Conventions, till further 
provision is made, in this case, by the first General Convention, 
which shall assemble with sufficient power to ratify a Book of 
Common Prayer for the Church in these States.” (Bioren, p. 25.) 

Such further provision was made in the General Convention 
of 1789, after the Deputies from those States had assembled with 
full powers of ratification (Bioren, p. 48) ; and after representa- 
tives from the Churches in Connecticut, Massachusetts and New 
Hampshire had united with them in the adoption of the Constitu- 
tion. (Bioren, p. 74.) The Article by which such provision was 
made appears in the Constitution of that year as Article 8, and is 
as follows: 


PROVISIONS FOR ESTABLISHMENT AND AMENDMENT. 105 


“A Book of Common Prayer, administration of the Sacra- 
ments, and other rites and ceremonies of the Church, articles of 
religion, and a form and manner of making, ordaining and con- 
secrating Bishops, Priests and Deacons, when established by this 
or a future General Convention, shall be used in the Protestant 
Episcopal Church in those States which shall have adopted this 
Constitution.” 

Under the authority conferred by this Article of the Consti- 
tution, the work of revision of the English Book of Common 
Prayer, with a view to its adaptation for use in the Protestant 
Episcopal Church in the States adopting the Constitution, was 
taken up anew in October, 1789, and carried to a successful issue, 
with the joint concurrence of the two Houses, then for the first 
time in separate session; although some work was, under the terms 
of the Article, postponed to a future General Convention. 

It will be observed that this Article distinguishes between the 
Book of Common Prayer and certain adjuncts which are commonly 
associated with it, though not in a proper sense a part of it; and 
also that the object of the Article was only to provide for the es- 
tablishment of this Book and its adjuncts, no longer as a proposal, 
to be used or disused at pleasure, but as authoritatively imposed 
upon all the Churches associated under the Constitution. It was 
natural that the Constitution at this time should content itself 
with such authoritative establishment, and should take no thought 
for the morrow of projected amendments; and the provision thus 
made sufficed until 1811; when, by the usual process, an amend- 
ment was made authorizing alterations, or at least prescribing 
a mode in which they could be constitutionally accomplished. 
That amendment (Bioren, p. 274) adds to the Article as adopted 
in 1789, the following sentence: 

“No alteration or addition shall be made in the Book of Com- 
mon Prayer, or other offices of the Church, unless the same shall 
be proposed in one General Convention, and by a resolve thereof 
made known to the Convention of every Diocese or State, and 
adopted at the subsequent General Convention.” 

In this sentence was included in 1829, after the words, “Offices 
of the Church,” the words, “or the Articles of Religion ;’ and, ex- 


106 ARTICLE X. THE BOOK OF COMMON PRAYER. 


cepting the change of 1838 regarding the use of the word Diocese 
instead of State, no further amendment was made until 1877, 
when the following third sentence was added: 

“Provided, however, That the General Convention shall have 
power, from time to time, to amend the Lectionary; but no act for 
this purpose shall be valid which is not voted for by a majority of 
the whole number of Bishops entitled to seats in the House of 
Bishops, and by a majority of all the Dioceses entitled to repre- 
sentation in the House of Deputies.” 

Composed of these three sentences, amended as indicated, 
Article 8 continued until the recent revision resulting in Article 
X. of the Constitution of 1901. The three sentences adopted at 
the times noted, each marked a distinct step. First, there was the 
provision of authoritative establishment in the Churches associ- 
ated under the Constitution; secondly, there was the provision for 
alteration, and the guarding of it by the requirement of approy- 
ing action in two successive sessions of General Convention, with 
an intermediate communication to the Diocesan Conventions; and, 
thirdly, there was the gift of power to General Convention to 
amend the Lectionary or order for the public reading of Holy 
Scripture, “from time to time;” that is, at any session, without 
communication to the Dioceses, and without need of subsequent 
ratification ; but in the exercise of this power the General Conven- 
tion was to act by a particularly specified concurrent majority; 
namely, that of all the Bishops entitled to seats in the House of 
Bishops, and that of all the Dioceses entitled to representation 
in the House of Deputies. Under this provision a majority of the 
Bishops attending would not suffice, unless it were a majority of all 
the Bishops entitled to seats in the House; and the majority in 
the House of Deputies was to be not a numerical majority, nor 
even a majority of all Dioceses represented by Clergy, concurring 
with a majority of all Dioceses represented by Laity, but a ma- 
jority of all the Dioceses entitled to representation in the House of 
Deputies ; which involved the concurrence of the Clergy and Laity 
in each one of that number of Dioceses which constituted the 
majority of the whole number of Dioceses entitled to representa- 
tion. 


STRUCTURE OF ARTICLE X. NATURE OF CHANGES. 107 


Into the room of this Article 8 has now succeeded Article X. 
of the Constitution as amended in 1901, importing several changes. 
But since Article X. follows the lines of the former Article 8 in 
its structure, it may perhaps simplify our task somewhat if we 
reproduce separately each of the three sentences of which it is com- 
posed, and note in each sentence the difference between the new and 
the old. The first sentence of Article X. is as follows: 

“The Book of Common Prayer and Administration of the Sac- 
raments and other Rites and Ceremonies of the Church, together 
with the Psalter or Psalms of David, the form and manner of 
making, ordaining and consecrating Bishops, Priests and Dea- 
cons, the form of Consecration of a Church or Chapel, the Office of 
Tnstitution of Ministers, and Articles of Religion, as now estab- 
lished or hereafter amended by the authority of this Church, shall 
be in use in all the Dioceses and Missionary Districts of this 
Church.” 

Beside the more detailed specification of the adjuncts to the 
Book of Common Prayer, which needs no comment, the notable 
changes here presented are in the terms of imposition; and these 
are, perhaps, changes in terms, rather than in substance of re- 
quirement. At least the present provision seems to require for the 
Church as it is now, substantially what this part of the old Article 
at the time of its adoption required for the Church as it was then. 
The phrase, The Book of Common Prayer, etc., when established 
by this or a future General Convention, is well replaced at this 
date by the phrase, The Book of Common Prayer, etc., as now es- 
tablished or hereafter amended by the authority of this Church. 
And the requirement that such Book, etc., “shall be in use in all 
the Dioceses and Missionary Districts of this Church,” seems to 
be, in this day, the proper equivalent for the old requirement, 
“shall be used in the Protestant Episcopal Church in those Dioceses 
which shall have adopted this Constitution,” since there are now, 
in that sense of the word, no Dioceses except such as have acceded 
to the Constitution; and since the Protestant Episcopal Church 
does no longer exist in any State or Territory or foreign land ex- 
cept in a form dependent upon the authority of those Dioceses as 
associated under that Constitution. No other change seems to be 


108 ARTICLE X. THE BOOK OF COMMON PRAYER. 


introduced here, unless there be some possible technical distine- 
tion between “shall be used” and “shall be in use,” the latter ex- 
pression being perhaps of a wider significance, as denoting that 
which would be liturgically described as “the use” of the Church, 
although probably that was what was intended by the expression 
originally adopted. 

The second sentence of Article X. is in the following lan- 
guage: 

“No alteration thereof or addition thereto shall be made un-- 
less the same shall be first proposed in one triennial meeting of 
the General Convention, and by a resolve thereof be sent within 
six months to the Secretary of the Convention of every Diocese, 
to be made known to the Diocesan Convention at its next meeting, 
and be adopted by the General Convention at its next succeeding 
triennial meeting by a majority of the whole number of Bishops 
entitled to vote in the House of Bishops, and by a majority of the 
Clerical and Lay Deputies of all the Dioceses entitled to repre- 
sentation in the House of Deputies voting by orders.” 

The changes here introduced are, first, in the way of abbrevia- 
tion, the words “thereof” and “thereto” being used to save the 
repetition of description contained in the former Article 8; sec- 
ondly, in the way of precision, the requirement that the proposed 
amendment be “made known to the Convention of every Dio- 
cese,” being replaced by the requirement that the resolution em- 
bodying the proposed amendment “be sent within six months to 
the Secretary of the Convention of every Diocese, to be made 
known to the Diocesan Convention at its next meeting ;”’and, 
thirdly, in respect to the vote by which the action of General Con- 
vention in the premises shall be expressed. 

In the former Article 8 no requirement was made as to the 
vote to be taken either upon the resolve to make the original pro- 
posal known to the Dioceses, or upon the final adoption. By con- 
sequence that vote might in either case be taken in the House of 
Deputies by acclamation, unless, under the former Article 2, on 
the requirement of the Clerical or Lay representation from any 
Diocese, the vote by Dioceses and Orders should become neces- 
sary. As the case stands at present no particular mode of voting 


REQUIREMENT OF “VOTE BY ORDERS.” 109 


is required in the House of Deputies in regard to the initiatory 
action in General Convention; and, therefore, the vote upon the 
“resolve” to give notice of a proposed amendment is regulated 
in that House by the general provisions of the present Article I. 
(Sec. 4, paragraph third); that is the vote of the majority of the 
Deputies present suffices, unless the Clerical or Lay representation 
of any Diocese require “that the vote be taken by orders;” and in 
the other House a majority of the quorum present determines the 
vote. In regard, however, to the final action of adoption at the 
next succeeding triennial session of General Convention the na- 
ture of the vote required in both Houses is distinctly specified in 
Article X.; and in order to constitute such action there is neces- 
sary in the House of Bishops the vote of “a majority of the whole 
number of Bishops entitled to vote in the House of Bishops ;” 
and, in the House of Deputies, the vote of “a majority of the 
Clerical and Lay Deputies of all the Dioceses entitled to repre- 
sentation in the House of Deputies voting by orders ;” which means 
that the majority is not simply the majority of a quorum pres- 
ent, but that of the Clerical and Lay Deputies of all the Dioceses 
entitled to representation ; and which means further that the vote 
of the Clerical Deputies of a majority of the Dioceses entitled to 
representation must concur with the vote of the Lay Deputies of 
a majority of the Dioceses entitled to representation. 

The requirement of Article I., Sec. 4, par. 3d, is that “in all 
cases of a vote by orders, the two orders shall vote separately, each 
Diocese having one vote in the Clerical order and one in the Lay 
order; and the concurrence of the votes of the two orders, by not 
less than a majority in each order of all the Dioceses represented in 
that order at the time of the vote, shall be necessary to constitute a 
vote of the House.” This, of course, applies primarily to the 
vote by orders taken to ascertain the consent of the majority of the 
quorum present, because ordinarily that consent is all that is 
needed or desired; but when the Constitution requires the vote 
by orders to be taken for the purpose of ascertaining the consent of 
the majority of the Clerical and Lay Deputies of all the Dioceses 
entitled to representation, then there must be represented at the 
time of the vote, in each order, a majority of Dioceses entitled to 


110 ARTICLE X. THE BOOK OF COMMON PRAYER. 


representation ; for, the “majority in each order of all the Dioceses 
represented in that order at the time of the vote,” would not be 
the vote required unless the Dioceses represented in the vote con- 
stituted a majority in each order of all the Dioceses entitled to 
representation. 

It is necessary to bear in mind in all questions arising under 
the provision for this “vote by orders” (as indeed is the case where 
any specified majority is required), that a measure fails of adoption 
unless that particular majority is obtained which is applicable to 
that measure. The Constitution in the case of an amendment to 
the Prayer Book requires that the vote which is to adopt it in the 
House of Deputies must be the vote by orders; and it also requires 
that the vote by orders in this particular case shall carry the con- 
sent of the majority of the Clerical Deputies of all Dioceses en- 
titled to representation, concurring with the consent of the ma- 
jority of Lay Deputies of all Dioceses entitled to representation— 
such majority in each order being, of course, the majority of 
Dioceses in each order. This is the requirement of a larger vote 
than is ordinarily called for under the provisions of Article I.; 
but it would be impossible, “voting by orders,” to secure the con- 
current consent required in Article X., unless the “majority in 
each order of all the Dioceses represented in that order at the time 
of the vote” were equal to the majority in each order of all the 
Dioceses entitled to representation, which is the thing required 
by the phrase, “a majority of the Clerical and Lay Deputies of all 
the Dioceses entitled to representation in the House of Deputies 
voting by orders.” 

The third sentence of Article X. is, with two or three excep- 
tions, identical with the third sentence of the former Article 7, 
and reads as follows: 

..“Provided, however, That the General Convention at any 
meeting shall have power to amend the Tables of Lessons by a ma- 
jority of the whole number of Bishops entitled to vote in the 
House of Bishops, and by a majority of the Clerical and Lay Depu- 
ties of all the Dioceses entitled to representation in the House 
of Deputies voting by orders.” 

The first two differences to be noted are apparently verbal ; the 


MODE OF VOTING CHANGED IN PROVISO. WT 


present words, “at any meeting” being equivalent to the former 
words, “from time to time;” and the present words, “Tables of 
Lessons,” being no doubt intended to be equivalent to the former 
word “Lectionary ;” though whether the assignment of portions of 
the Psalter is as well covered by the term “Tables of Lessons,” as 
it was covered by the term “Lectionary” is perhaps a fair ques- 
tion. 

The other difference, however, is more than verbal, as the 
present Article requires precisely the same kind of vote in the case 
of an amendment of the Tables of Lessons at any meeting, as is 
required in case of the final adoption of any other amendment to 
the Book of Common Prayer, which has been particularly described 
in the comment upon the foregoing sentence; whereas the require- 
ment of the former Article 8, as to the majority needed in the 
House of Deputies, was that it should be “a majority of all the 
Dioceses entitled to representation” in that House. 

This is a substantial alteration, and requires particular at- 
tention, because, as before pointed out, the “vote by orders” as 
defined in the present Constitution is not (any more than was the 
same vote under the former Constitution) necessarily identical 
with the vote of a majority of the Dioceses. The consent given 
through the vote by orders may involve in fact the consent of the 
majority of the Dioceses; because in a majority of the Dioceses 
each of the Dioceses composing that majority may cast its votes. 
Clerical and Lay, on the same side; but as no Diocese is obliged 
by the Constitution to do this in a “vote by orders,” it is obvious 
that the concurrent majority may consist, in that vote, of a majority 
of Dioceses voting aye by their Clergy, and of a majority of Dio- 
ceses voting aye by their Laity, and yet these majorities might 
come almost wholly from different Dioceses. In a supposed case 
of thirteen Dioceses, those numbered from one to seven inclusive 
might vote aye by their Clergy, and those numbered from seven 
to thirteen inclusive might vote aye by their Laity, and in a 
“vote by orders,” the measure with that showing would be adopted ; 
and yet the Diocese numbered seven would be the only one of the 
thirteen in which the Diocese would have cast both of its votes, 
Clerical and Lay, on the same side: whereas if the vote required 


112 ARTICLE X. THE BOOK OF COMMON PRAYER. 


were the vote of a majority of the Dioceses, seven Dioceses out of the 
thirteen in the supposed case would have had to vote aye both by 
their Clergy and by their Laity. In ordinary cases, and unless 
there is some special reason for requiring the vote of a majority of 
the Dioceses, the distinction is perhaps of no material importance ; 
but since the distinction exists it is important to understand it. 

In concluding the comment upon Article X. it may be useful 
to remark that a proposed amendment, adding another sentence 
to the Article, is to come up for adoption in 1904, at the next tri- 
ennial meeting of General Convention. The sentence which it is 
proposed to add (Journal of 1901, app. XVI., p. 573), reads as 
follows: 

“And provided further, that nothing in this Article shall be 
construed as restricting the authority of the Bishops of this Church 
to take such order as may be permitted by the Rubrics of the Book 
of Common Prayer or by the Canons of the General Convention 
for the use of special forms of worship.” 

It is difficult to see how Article X. as it stands can restrict 
the Bishops from doing what they are permitted to do by the 
Rubrics of the Book of Common Prayer. Article X. establishes the 
Book, Rubrics included; and any permission in regard to the 
use of special forms of worship which the Rubrics may now con- 
tain or may hereafter be so amended as to express, are constitu- 
tionally authorized by Article X.; and there could be no possible 
construction of that Article which would restrict the authority of 
the Bishops to avail themselves of such permission. 

With regard to Canons, the case is different; for Canonical 
permission or authorization for the Bishops to take order for the 
use of special forms of worship, might be questioned on the 
ground that the legislature had no Constitutional power to pre- 
scribe, or authorize the Bishops to provide special forms of wor- 
ship, when the whole subject of forms of worship for use in the 
Church had been settled by the Constitutional establishment of the 
Prayer Book. The proposed amendment may, therefore, mean that 
if Canons of the General Convention permit the Bishops to take 
order for the use of special forms of worship the Bishops are to 
be considered as having Constitutional right to avail themselves 


SPECIAL FORMS, OR COMMON FORM. 113 


of such permission. In other words, according to this proposed 
amendment the Constitution establishes a general form of wor- 
ship in the Book of Common Prayer to be in use throughout the 
Church; and at the same time authorizes the Bishops to provide 
special forms of worship, additional to, and possibly in substitu- 
tion for, those of the Prayer Book, if the Canons permit; which 
practically relegates the whole subject of forms of worship to the 
action of General Convention, notwithstanding the provisions of 
the Constitution. 

Before this proposed addition is adopted, it will no doubt be 
understood by those who are commissioned to act upon it; and 
it behooves one not fully instructed in regard to its intent, to 
speak with caution concerning it. But the observation may, per- 
haps, with all respect, be hazarded, that if it be desired to lodge 
in General Convention the power to pass Canons permitting the 
Bishops to take order for the use of special forms of worship, it 
may be well that the Constitution in some way define the nature 
of the occasions for the use of such special forms. Dolus latet in 
generalibus is an aphorism that applies as well in Constitutional 
law as in logic. A general recognition of the right of the Bishops 
to take such order for the use of special forms of worship as any 
Canon of General Convention may permit, opens a door to pos- 
sibilities in regard to forms of worship which has heretofore 
been understood to be closed by the Constitutional establishment 
of a COMMON form. 


114 CONSTITUTIONAL AMENDMENT. 


ARTICLE XI. 
CONSTITUTIONAL AMENDMENT. 


It is a satisfaction to reflect, as we approach the end of our 
pilgrimage, that so much attention has already been paid to the 
nature of the “vote by orders,” and the distinction between that 
vote and the action of the Church in a majority of the Dioceses, 
that there is little need to enlarge upon these points at this stage 
of the journey; since the introduction into Article XI. of an ap- 
plication of the vote by orders is the chief feature of the difference. 
between that Article and the former Article 9, which also dealt. 
with the subject of amendments to the Constitution. 

The significance of that change, however, requires some at- 
tention; and besides, the whole Article has been re-cast; and, even 
as to the same provisions, is expressed in different language; and 
if the Article has, like some others, its roots in the past, it will. 
be well to trace its origin and development. 

The proposed Constitutions of 1785 and 1786 each concluded. 
with an Article, numbered XI., relating to the obligation of the 
Constitution when established. There was no need, in instru- 
ments not yet adopted, to make provision for amendments, and,. 
of course, the questions which had to be met were not as to amend- 
ments, but were whether a Constitution could be adopted at all;. 
and what, if it were adopted, would be the relation to it of the 
Church existing in the States; and these questions seem to have- 
been in mind in the framing of the Articles mentioned. 

That of 1785 reads: 

“This General Ecclesiastical Constitution, when ratified by- 
the Church in the different States, shall be considered as funda-. 
mental; and shall be unalterable by the Convention of the Church. 
in any State.” 

That of 1786 reads: 

“The Constitution of the Protestant Episcopal Church in the- 


HISTORY OF PROVISION FOR AMENDMENT. 115 


United States of America, when ratified by the Church in a ma- 
jority of the States assembled in General Convention, with suffi- 
cient power for the purpose of such ratification, shall be unaltera- 
ble by the Convention of any State, which hath been represented 
at the time of such ratification.” 

The latter of these two Articles was adopted in amendment of, 
or in substitution for, the former, on the 23d day of June, 1786. 
Like that for which it was substituted, it awaits ratification, and 
is put forth as a recommendation. But unlike that of 1785, this 
Article contemplates, and is proposed to be submitted for, ratifi- 
cation “by the Church in a majority of the States assembled in 
General Convention, with sufficient power for the purpose of such 
ratification.” The former process had been for the Deputies to 
recommend, and submit their recommendations to the acceptance 
or rejection of the States from which they had come. But, after 
trying this process, the conclusion appears’ to have been reached 
that, as Bishop White somewhere says, it was idle to bring gen- 
tlemen together from so great distances for the accomplishment of 
so inconclusive a business. And, therefore, the plan adopted in 
1786 was to mature the proposals as far as possible, and then ask 
the constituencies to send Deputies who would not have to be con- 
tent with recommendations, but who would be empowered to bind 
their constituents by their action; and this Article is so drawn as 
to give the perfectly fair notice to the Churches in the States that 
if they empowered their Deputies to consent to the adoption of a 
Constitution, and if such Constitution should be “ratified by 
the Church in a majority of the States assembled in General Con-- 
vention with sufficient power for the purpose of such ratification,” 
then no Convention of a particular State which had been repre- 
sented at the time of such ratification should have any power to 
make alterations in that Constitution. 

Correspondent to this action a resolution was adopted on the 
following day recommending the Conventions in the States rep- 
resented to authorize and empower their Deputies to the next 
General Convention to confirm and ratify a general Constitution 
respecting both the doctrine and the discipline of the Church; and 
the Deputies at the General Convention of 1789, being called upon 


116 ARTICLE XI. CONSTITUTIONAL AMENDMENT. 


to declare their powers relative to the object of this resolution, 
gave information of their full authority. (Bioren, pp. 26, 48.) 

In the execution of this authority the Constitution of 1789 
was adopted and ratified; and its ninth and concluding Article 
prescribed the mode by which only it could be altered. The Article 
was as follows: 

“This Constitution shall be unalterable unless in General 
Convention, by the church in a majority of the states which may 
have adopted the same: and all alterations shall be first proposed 
in one General Convention, and made known to the several state 
Conventions before they shall be finally agreed to, or ratified, in the 
ensuing General Convention.” 

The ideas underlying this Article, and plainly derived from 
the proposal of 1786, were that the factor in the establishment of 
the Constitution was the Church in the States represented, and 
that the sphere of operation of that factor was the General Con- 
vention. The Church in a majority of the States acted, according 
to the terms on which the Deputies assembled, to the obligation of 
all the States represented; but such action could only be taken in 
General Convention by the Deputies appointed and authorized for 
the purpose. And these ideas, Article 9, of 1789, applied to the 
process of alteration, as they had before been applied to the 
process of adoption. The Constitution was declared to be unalter- 
able except by the power and in the mode of its adoption; that is to 
say, by the Church in a majority of the States which had adopted 
it; and in General Convention. These principles being declared, 
the Article provided further safeguards, requiring that the altera- 
tion in order to be accomplished, must be first proposed in one 
General Convention, then made known to the several State Con- 
ventions, and then finally agreed to, or ratified, in the ensuing 
General Convention. 

In this form, except for the recognition of Dioceses as occu- 
pying the position formerly held by States, and except also for 
one or two unauthorized changes in punctuation, Article 9 contin- 
ued until the session of 1901; and under its sanction, and in in- 
tended compliance with its provisions, all the amendments which 
have been made in the Constitution have been adopted. Article XJ., 


CORRESPONDENCE BETWEEN ARTICLES X. AND XI. Ware 


which has replaced it in the present Constitution, reads as follows: 

“No alteration or amendment of this Constitution shall be 
made unless the same shall be first proposed at one triennial meet- 
ing of the General Convention, and by a resolve thereof be sent 
to the Secretary of the Convention of every Diocese, to be made 
known to the Diocesan Convention at its next meeting, and be 
adopted by the General Convention at its next succeeding trien- 
nial meeting by a majority of the whole number of Bishops en- 
titled to vote in the House of Bishops, and by a majority of the 
Clerical and Lay Deputies of all the Dioceses entitled to representa- 
tion in the House of Deputies voting by orders.” 

The first observation which occurs upon the perusal of this 
Article is that it is almost a verbatim repetition of the second sen- 
tence of Article X., relating to amendments to the Book of Com- 
mon Prayer. Except that one refers to amendments to the 
Prayer Book and its adjuncts, and the other refers to amend- 
ments to the Constitution, there is little difference between the 
two, and such differences as there are appear to be inadvertencies ; 
such as the proposal being made in one triennial meeting in one 
case, and at one triennial meeting in the other case; and that the 
proposal is to be sent to the Secretary of the Convention of every 
Diocese within six months in one case, whereas no time is specified 
for the sending in the other case: which latter difference is unfor- 
tunate, whether or not it were an inadvertence, as the general 
fidelity of the copy leads one to assume that it was. 

But in the main the provisions are the same; the proposal, the 
resolve directing that the proposal be sent to the Secretary of the 
Convention of every diocese, the making known to the Convention 
of every Diocese at its next meeting (presumably the next after 
the triennial meeting at which it was made), and the final adop- 
tion at the next triennial meeting, are steps essential to amend- 
ment of each kind, according to the Constitutional requirements. 
And the same correspondence is apparent in respect of the re- 
quirement as to the vote by which is expressed the action of the 
power by which the amendment is made in each case, and as to 
the sphere in which that power is to act. 


115 ARTICLE XI CONSTITUTIONAL AMENDMENT 


In regard to Prayer Book amendments there has been some 
increase in the strictness of the requirement as to the vote by 
which the Church expresses itself in General Convention, Article 
X. calling for a concurrent majority of Clerical and Lay repre- 
sentations of all Dioceses entitled to be represented, and for a 
majority of the whole number of Bishops entitled to vote. In 
regard to Constitutional amendments there has been some relaxa- 
tion in strictness, the Church allowing the expression of its will 
as to such amendments, in the House of Deputies by a concurrent 
majority of Clerical and Lay representations of all Dioceses en- 
titled to be represented (which is a vote easier to obtain than that 
of a majority of Dioceses entitled to representation) ; and, in the 
House of Bishops, by a majority of all Bishops entitled to vote 
(which is on the other hand harder to obtain than the Episcopal 
majority formerly effective). These changes appear to tend to- 
ward an equality in the requirement as to alterations in the 
Book and in the Constitution which did not exist before, but which 
the present amendment seems to have intended to establish. This 
equalization is a new feature, and deserves attention as such, 
since it is not to be assumed that there is no reason for putting the 
Prayer Book and the Constitution on the same footing in this 
particular, because it has not hitherto been done. 

It is a question not without interest, and not altogether easy 
to determine, whether the acts in establishment and amendment 
of the Book of Common Prayer are legislative, or Constitutional in 
their character: nor is the question merely speculative, and with- 
out practical bearing. On the one hand it is to be said that the 
Book was originally established by General Convention in 1789, in 
the exercise of the powers bestowed upon it by Article 8 of the 
Constitution already adopted in that year; and that the Book has 
been since at different times amended under the sanction of the 
amendment of that Article of the Constitution in 1811. This cer- 
tainly affords strong ground for the claim that the power to es- 
tablish and amend the Book is a legislative power conferred upon 
General Convention by the Constitution in Article 8. And this 
ground appears to be further strengthened by the consideration 
that in that Article 8 the mode in which the power was to be 


ACTION AS TO PRAYER BOOK, LEGISLATIVE OR CONSTITUTIONAL? UG 


exercised was not determined; and no distinction was made be- 
tween the mode of the exercise of that power, and the mode of the 
exercise of the legislative power in any other direction. It is true 
that the action required for amendment (although not the action 
required for original establishment), was to be taken in two suc- 
cessive sessions of General Convention, with an intermediate ref- 
erence to the Dioceses; but that provision by itself would hardly 
overthrow the idea that the action was legislative action, so long 
as the vote required to determine that action was the same as that 
required for legislative action, and was clearly distinguishable 
from that required in Article 9, for action in amendment of the 
Constitution. 

On the other hand it is to be said that the Book was intrinsec- 
ally as much a part of the fundamental or organic law which fur- 
nished the basis for the association of the Church in the States 
or Dioceses, as was any Article of the Constitution provided for 
that purpose; the basis of a common faith, and a common rule of 
worship, being essentially as fundamental in an Ecclesiastical 
Association as the basis of a common order of administration could 
be in a civil association. And another point to be noted is that 
under the recommendation of 1786, the compliance with which 
brought together in 1789 Deputies empowered to bind their con- 
stituents, the power was described as for the ratification of a 
general Constitution respecting both the doctrine and the disci- 
pline of the Church; and it is hardly to be doubted that that 
power authorized the establishment by that Convention of the 
Book, as well as of the several Articles which were grouped under 
the term Constitution. If the members of that Convention had 
proceeded to establish the Book first, and the Constitution after- 
wards, it could not have been said that they were acting beyond the 
power conferred upon them to ratify a general Constitution re- 
specting both the doctrine and the discipline of the Church, nor 
could it fairly have been denied that the Book was, practically, as 
much a part of the Constitution as were the several Articles 
grouped under that specific name. 

In point of fact, however, this course was not followed; and 
although the power of the Deputies to the Convention of 1789 be 


120 ARTICLE XI. CONSTITUTIONAL AMENDMENT. 


allowed to have included the power to establish the Book, they 
did not see fit to exercise their power in that way; but chose (what 
seems to have been the more orderly way), the course of embody- 
ing in the Constitution which they adopted, an Article covering 
the establishment of the Book, and providing in that Article the 
Constitutional basis for their own future action, or that of their 
successors, if they themselves should not be able to accomplish the 
end proposed. Having done this, it is a reasonable deduction that 
the power conferred upon them to that end was exhausted by that 
action; and that henceforth, action taken in reference to the es- 
lishment of the Book, was action taken under the authority derived 
from theArticle of the Constitution, and not from their original 
deputation which they had entirely fulfilled in the adoption of 
that Article. 

It is worth a moment’s pause in this discussion, to observe 
the estimate which the members of that Convention put upon their 
own action. 

The first seven articles of the Constitution were adopted in the 
early part of the session of August, 1789; and the last two were 
laid over to a future day, the Convention being not-at the same 
time ready to act upon them. These two were Article 8 on the 
establishment of the Book, and Article 9 on alterations of the 
Constitution, which were both adopted at a later day in the same 
session. But in adopting the first seven Articles, in which were 
included those which devolved legislative powers upon the Con- 
vention, the resolution of adoption formally expresses the relation 
of the acts of the Convention to the Articles adopted. A commit- 
tee having been appointed to consider the proposed Constitution of 
1786, and to recommend alterations, and having reported a Con- 
stitution accordingly, it was “Resolved that the first, second, fourth, 
fifth, sixth, seventh and eighth Articles be adopted, and stand in 
this order, 1, 2, 3, 4, 5, 6, 7; that they be a rule of conduct for this 
Convention; and that the remaining articles be postponed for the 
future consideration of this Convention.” (Bioren, p. 52.) 

If then, the Convention understood and resolved that these 
seven Articles were the rule of conduct of the Convention in 
respect to all action covered by them, there seems no escape from 
the conclusion that Article 8, when it was adopted at the later 


SIGNIFICANCE OF CHANGES. 121 


convenience of the body (Bioren, p. 60), became a rule of conduct 
for the Convention in regard to action covered by that Article; so 
that action taken still later by the same Convention in the estab- 
lishment of the Book (October, 1789), was action taken under 
what, being embodied in the Constitution, had become a rule of 
conduct for that body in that matter. 

These considerations indicate most plainly that the action 
taken by the Convention in the establishment of the Book of Com- 
mon Prayer was in the proper sense legislative action, as being 
dependent upon constitutional action previously taken and specifi- 
cally authorizing the promulgation of rules to be obeyed on certain 
subjects by the Clergy and people of the Church. And if the act 
of establishment of the Book was legislative, as distinguished from 
constitutional, then necessarily acts of amendment to the Book, 
when authorized by amendment of the Constitution, were in like 
manner legislative and not constitutional in their character. Nor 
ean it be regarded as other than a simply reasonable conclusion, 
that the Convention of 1811, which first made provision for amend- 
ments, did what it intended to do when it left such provision to be 
carried out precisely in the manner in which all legislative action 
was to be carried out, and refrained from requiring that it should 
be carried out in the way in which constitutional action, or action 
in amendment of the Constitution was required to be carried out. 
Neither in 1811, nor for nearly a century afterwards, does it ap- 
pear to have occurred to General Convention that the vote deter- 
mining its action in regard to amendments to the Book, should be 
taken in any other way than that provided in the old Article 2, 
which was applicable to all legislative action, and was known as the 
vote by Dioceses and Orders, as distinguished from the action in 
General Convention of the Church in a majority of Dioceses called 
for by Article 9, in alteration of the Constitution. 

These things being so, the significance of the change accom- 
plished by the Church in substituting the provisions of the pres- 
ent Articles X and XI, for those of the former Articles 8 and 9; 
and in promoting amendments to the Book of Common Prayer 
from the grade of legislative action to that of constitutional action, 
by prescribing precisely the same sanctions for both, furnishes food 
for reflection. 


122 ARTICLE XI. CONSTITUTIONAL AMENDMENT. 


With regard to the change in the character of amendments to 
the Prayer Book, and the placing of them in the same position with 
amendments to the Constitution, as the purpose of the act seems 
perfectly clear, so it seems also clear that nothing can be inferred 
from it, except that the contents of that Book, including of course 
its adjuncts with it, are essentially of as much importance, and as 
fit to be considered a part of the fundamental or organic law goy- 
erning the association upon which it is imposed, as are any of the 
Articles of the Constitution of that association. But the end pro- 
posed might have been accomplished by applying to such amend- 
ments the rule all along provided for amendments of the Consti- 
tution. 

The end, however, was not accomplished in that way, but on 
the other hand by relaxing in one respect the strictness of the re- 
quirement as to constitutional amendments, and phrasing it in the 
same way as that for Prayer Book amendments. Why this course 
was pursued, is a question which the text does not answer, and 
which is therefore open for consideration. 

In regard to this question, it is to be observed that where a 
practical reason for a change exists, it is not worth while to look 
for a theoretical reason, unless there is something to show that the 
practical reason is not sufficient to account for it. And with re- 
gard to this change, it may be reasonably said that the ends of con- 
venience and simplicity appear to have been served; and that inas- 
much as the vote by orders had been in a previous article defined 
and described, and was such as to give the best expression of the 
will of a quorum in ordinary cases, it was thought sufficient, and 
better, to use it as the mode of ascertaining the will of the whole 
Church in certain specified extraordinary cases, such as those of 
amendments to the “General Constitution respecting both the doc- 
trine and the discipline of the Church,” or in other words to the 
Prayer Book and the Constitution; and to avoid the retention, in 
one particular case, of another kind of vote, which had always, or 
at least in later times, been imperfectly understood, and con- 
cerning which it was to be doubted whether in fact, except in the 
beginning, it had ever been perfectly carried out. For although, 
as already observed, all the amendments to the Constitution since 
the adoption of Article 9 in 1789, have been made in intended com- 


PRACTICAL REASONS FOR CHANGES. 123 


pliance with the provisions of that Article, yet in a given case it 
would be extremely difficult to prove that an alteration had in fact 
been accomplished in exact compliance with those provisions: first, 
because it would not be easy, if it were possible, to show that the 
vote of a Bishop of the Church in a Diocese had coincided with the 
vote of his Diocese; and secondly because it does not always seem 
clear from the records of the Journals whether the vote on amend- 
ment to the Constitution has been taken, under the provisions of 
the old Article 2, as avote by Dioceses and Orders, or under Article 
9, as a vote by Dioceses. Under these circumstances then, the kind 
of vote required by Article 9 being apt to be misunderstood and 
misapplied, there seemed to be reason for the change to a mode of 
voting which, even if not so universally understood as would be 
desirable, was yet capable of being acted on with precision, and no 
departure from which could take place without its being at once 
detected and repudiated. 

To this practical reason, which is alone sufficient to account 
for the change, there is to be added another equally practical though 
somewhat deeper; and that is that in the changed conditions under 
which we now live, the will of the Church throughout the Dio- 
ceses can be much more nearly ascertained by the distributive 
“vote by orders,” than by the action of a simple majority of Dio- 
ceses. Situated as the Church was at the time of the adoption of 
the old rule, when in each State there was an independent organi- 
zation claiming the right to the regulation of its own ecclesiastical 
affairs, the appeal naturally was that these should come together 
into a common union or association; and consent, each of them to 
be bound by the will of a majority of them all. It was natural 
too, as has been shown historically to have been the fact, that the 
agreement should be made that the common Constitution should 
be amended only by a majority of those States which had acceded 
to it, and that once established such a rule should have continued 
longer than the reason for it; though being constitutional it could 
not well fail from desuetude. But now that this union has so long 
continued that the whole idea of the right of individual or inde- 
pendent Diocesan action has been outgrown, it has become equally 
natural that the consent of the Church should be given rather as 
that of the whole body distributed throughout the Dioceses, than 


124 ARTICLE XI. CONSTITUTIONAL AMENDMENT. 


as that of a majority of the Dioceses as such. For these plainly 
practical reasons the change thus involved in the substitution of 
Article XI for Article 9, has apparently been made; and as there 
appears to be no evidence of any further or other reason, we seem 
to be justified in accepting these as sufficient to account for it. 

But as to inferences which may be drawn from the changes of 
language involved in that substitution, there appears to be need of 
some caution. The amendment is said to take place by a resolve of 
General Convention at one triennial meeting, and by its adoption 
of the proposal contained in the resolve at its next triennal meet- 
ing. To infer from this language, however, that the act of amend- 
ment is the act of General Convention otherwise than as the agent 
of the power which created it, and devolved this capacity of action 
upon it, by the Constitution, would be extremely rash; first, be- 
cause such inference would utterly confuse the inherent and es- 
sential distinction between the Church in the Dioceses and the 
General Convention, which is involved in the very idea of the 
Constitution ; and secondly because it would leave out of sight the 
fact that the right of the Church in a majority of the Dioceses to 
make such amendment in the Constitution, has not been taken 
away, but only is not required to be exercised, which is a different 
matter. 

That the Church in the Dioceses is the factor by which amend- 
ment is made, and that the General Convention is the sphere in 
which that factor operates is as true under Article XI. as it was 
under Article 9. It is not so apparent, because the requirement is 
that of a majority of Dioceses in each order, instead of a majority 
of Dioceses. But it is always within the power of the Church in a 
majority of Dioceses to make or prevent an amendment to the Con- 
stitution ; because it is always within the power of the Church in 
a majority of the Dioceses to cast its clerical and lay votes on the 
same side. The improbability of such a course being pursued, has 
nothing to do with the constitutional right to pursue it. It seems, 
therefore, that the relation of the Dioceses to the General Conven- 
tion and the Constitution has not in principle been affected by the 
substitution of Article XI.; although, with their consent and 
approval the process of amendment has been so far modified as not 
to require the vote of the majority of Dioceses as such; but to per- 


ADAPTABILITY OF CONSTITUTIONAL GOVERNMENT. 125 


mit the concurrent vote of the Clerical and Lay representatives of 
a majority of the Dioceses entitled to be represented to be accepted 
as a substitute for it. 


Thus with the comment upon the concluding Article of the 
amended Constitution of 1901, we bring to a close the compara- 
tive study which it was the purpose of the present essay to pursue. 

In looking back upon the work as accomplished, it appears to 
have gone somewhat further than a comparison between the pres- 
ent Constitution and its immediate predecessor, and to have tended 
toward reflections, both historical and critical, which were not at 
first contemplated. These reflections, however, have seemed to 
grow naturally out of the subjects necessary to be discussed; and 
have not, it is hoped, exceeded the proper limits of what was de- 
signed as a practical endeavor to promote the better understanding 
of the Constitution in its present form. 

To treat this Instrument merely as a legal document without 
regard to the Church principles which underlie it, and which it 
plainly presupposes, would have been to ignore the relation between 
the Church in this country and the Catholic Church, of which it is 
a part; to treat it without regard to the facts of its origin, would 
have been to ignore its vital connection with what was really an 
epoch in the history of Christianity; and to omit to notice what 
appeared to be its imperfections would have been to ignore the 
possibility of its improvement. In this latter aspect of the work, 
however, it is hoped that no criticism may have given the impres- 
sion of disparagement. To have afforded just cause for such an 
impression would be matter of real sorrow, since nothing could be 
further from the purpose of the present paper than such unseem- 
liness as would be involved in anything like depreciation of the 
terms of an Instrument so august in its sanctions as that which 
has been under consideration. 

It ought always to be remembered that constitutional govern- 
ment, though more stable than some others, is not a fossil, but a 
living organism, which never can attain a final form until it has 
ceased to be, and has become only a part of the history of the 


126 ARTICLE XI. CONSTITUTIONAL AMENDMENT. 


past ; and in which, therefore, while it lives, there is required from 
time to time a readjustment, or adaptation of the principles of the 
past to the new conditions of the present. And respectful, out- 
spoken comments upon authoritative forms, ought only to be re- 
garded in the light of contributions to that process. If they do not 
clearly indicate, they may at least prepare the way for, the means 
needed for the correction of missteps on the path toward perfec- 
tion. 

Nor should it be forgotten that a period of social and intel- 
lectual unrest like that in which we live; a period wherein no pre- 
viously accepted truth is permitted to pass unchallenged; and 
wherein not only constitutional, but also every species of representa- 
tive government begins to be eyed with suspicion, and held re- 
sponsible for the very evils which it has been studiously designed 
to prevent, is not a time in which we can afford to relax our watch- 
fulness of the process of the development of forms which are essen- 
tial to the expression and preservation of sound and just princi- 
ples. ; 


APPENDIX. 


Constitution as in 1898, and 1901. 


ve 


Dia 
cy 

* ou 
wy 3 


1898. 


CONSTITUTION, 


ADOPTED IN GENERAL CONVENTION, 


IN PHILADELPHIA, OCTOBER, 1789. 


ARTICLE 1. 


There shall be a General Convention of the Protestant Epis- 
copal Church in the United States of America on the first Wednes- 
day in October, in every third year, from the year of our Lord 
one thousand eight hundred and forty-one; and in such place as 
shall be determined by the Convention; and in ease there shall 
be an epidemic disease, or any other good cause to render it 
necessary to alter the place fixed on for any such meeting of the 
Convention, the Presiding Bishop shall have it in his power to 
appoint another convenient place (as near as may be to the place 
so fixed on) for the holding of such Convention; and special 
meetings may be called at other times, in the manner hereafter to 
be provided for; and this Church, in a majority of the Dioceses 
which shall have adopted this Constitution, shall be represented, 
before they shall proceed to business; except that the representa- 
tion from two Dioceses shall be sufficient to adjourn; and in all 
business of the Convention freedom of debate shall be allowed. 


ARTICLE 2. 


The Church in each Diocese shall be entitled to a representa- 
tion of both the Clergy and the Laity. Such representation shall 


consist of not more than four Clergymen and four Laymen, com- 


129 


130 APPENDIX. 


municants in this Church, residents in the Diocese, and chosen in 
the manner prescribed by the Convention thereof; and in all 
questions when required by the Clerical or Lay representation 
from any Diocese, each Order shall have one vote; and the ma- 
jority of suffrages by Dioceses shall be conclusive in each Order, 
provided such majority comprehend a majority of the Dioceses 
represented in that Order. The concurrence of both Orders 
shall be necessary to constitute a vote of the House of Deputies. 
If the Convention of any Diocese should neglect or decline to 
appoint Clerical Deputies, or if they should neglect or decline to 
appoint Lay Deputies, or if any of those of either Order appointed 
should neglect to attend, or be prevented by sickness or any other 
accident, such Diocese shall nevertheless be considered as duly 
represented by such Deputy or Deputies as may attend, whether 
Lay or Clerical. And if, through the neglect of the Convention 
of any of the Churches which shall have adopted or may hereafter 
adopt this Constitution, no Deputies, either Lay or Clerical, 
should attend at any General Convention, the Church in such 
Diocese shall nevertheless be bound by the acts of such Conven- 
tion. 


ARTICLE 3. 


The Bishops of this Church, when there shall be three or 
more, shall, whenever General Conventions are held, form a sepa- 
rate House, with a right to originate and propose acts for the 
concurrence of the House of Deputies composed of Clergy and 
Laity; and when any proposed act shall have passed the House of 
Deputies, the same shall be transmitted to the House of Bishops, 
who shall have a negative thereon; and all acts of the Convention 
shall be authenticated by both Houses. And in all cases the 
House of Bishops shall signify to the House of Deputies their 
approbation or disapprobation (the latter with their reasons in 


CONSTITUTION, 1898. 131 


writing) within three days after the proposed act shall have been 
reported to them for concurrence; and in failure thereof, it shall 
have the operation of a law. But until there shall be three or 
more Bishops, as aforesaid, any Bishop attending a General Con- 
vention shall be a member ex-officio, and shall vote with the 
Clerical Deputies of the Diocese to which he belongs; and a 
Bishop shall then preside. 


ARTICLE 4. 


The Bishop or Bishops in every Diocese shall be chosen 
agreeably to such rules as shall be fixed by the Convention of that 
Diocese; and every Bishop of this Church shall confine the exer- 
cise of his Episcopa! Office to his proper Diocese, unless requested 
to ordain, or confirm, or perform any other act of the Episcopal 
Office in another Diocese by the Ecclesiastical Authority thereof. 


ARTICLE 5. 


A Protestant Episcopal Church in any of the United States. 
or any Territory thereof, not now represented, may, at any time 
hereafter, be admitted on acceding to this Constitution; and a 
new Diocese, to be formed from one or more existing Dioceses, 
may be admitted under the following restrictions, viz. :— 

No new Diocese shall be formed or erected within the limits 
of any other Diocese, nor shall any Diocese be formed by the 
junction of two or more Dioceses, or parts of Dioceses, unless 
with the consent of the Bishop and Convention of each of the 
Dioceses concerned, as well as of the General Convention, and 
such consent shall not be given by the General Convention until 
it has satisfactory assurance of a suitable provision for the sup- 
port of the Episcopate in the contemplated new Diocese. 

No such new Diocese shall be formed which shall contain less 
than six Parishes, or less than six Presbyters who have been for 


Us}% APPENDIX. 


at least one year canonically resident within the bounds of such 
new Diocese, regularly settled in a Parish or Congregation, and 
qualified to vote for a Bishop. Nor shall such new Diocese be 
formed if thereby any existing Diocese shall be so reduced as to 
contain less than twelve Parishes, or less than twelve Presbyters 
who have been residing therein and settled and qualified as above 
mentioned: Provided, that no city shall form more than one 
Diocese. 

In case one Diocese shall be divided into two or more Dio- 
ceses, the Diocesan of the Diocese divided may elect the one to 
which he will be attached, and shall thereupon become the Dio- 
cesan thereof; and the Bishop Coadjutor if there be one, may elect 
the one to which he will be attached; and if it be not the one 
elected by the Bishop, he shall be the Diocesan thereof. 

Whenever the division of a Diocese into two or more Dioceses 
shall be ratified by the General Convention, each of the Dioceses 
shall be subject to the Constitution and Canons of the Diocese so 
divided, except as local circumstances may prevent, until the 
same may be altered in either Diocese by the Convention thereof. 
And whenever a Diocese shall be formed out of two or more exist- 
ing Dioceses, the new Diocese shall be subject to the Constitution 
and Canons of that one of the said existing Dioceses to which the 
greater number of Clergymen shall have belonged prior to the 
erection of such new Diocese, until the same may be altered by the 
Convention of the new Diocese. 


ARTICLE 6. 


The mode of trying Bishops shall be provided by the General 
Convention. The Court appointed for that purpose shall be com- 
posed of Bishops only. In every Diocese, the mode of trying 
Presbyters and Deacons may be instituted by the Convention of 
the Diocese. None but a Bishop shall pronounce sentence of ad- 


CONSTITUTION, 1898. 133 


monition, suspension, or degradation from the Ministry, on any 
Clergyman, whether Bishop, Presbyter, or Deacon. 


ARTICLE 7. 


No person shall be admitted to Holy Orders until he shall 
have been examined by the Bishop, and by two Presbyters, and 
shall have exhibited such testimonials and other requisites as the 
Canons, in that case provided, may direct. Nor shall any per- 
son be ordained until he shall have subscribed the following decla- 
ration :— 

“TI do believe the Holy Scriptures of the Old and New Testa- 
ment to be the Word of God, and to contain all things necessary 
to salvation; and I do solemnly engage to conform to the Doc- 
trines and Worship of the Protestant Episcopal Church in the 
United States.” 

No person ordained by a foreign Bishop shall be permitted 
to officiate as a Minister of this Church, until he shall have com- 
plied with the Canon or Canons in that case provided, and have 
also subscribed the aforesaid Declaration. 


ARTICLE 8. 


A Book of Common Prayer, Administration of the Sacra- 
ments, and other Rites and Ceremonies of the Church, Articles 
of Religion, and a Form and Manner of making, ordaining, and 
consecrating Bishops, Priests, and Deacons, when established by 
this.or a future General Convention, shall be used in the Protest- 
ant Episcopal Church in those Dioceses which shall have adopted 
this Constitution. No alteration or addition shall be made in 
the Book of Common Prayer, or other Offices of the Church, or 
the Articles of Religion, unless the same shall be proposed in one 
General Convention, and by a resolve thereof made known to the 
Convention of every Diocese, and adopted at the subsequent Gen- 


134 APPENDIX. 


eral Convention. Provided, however, That the General Conyen- 
tion shall have power, from time to time, to amend the Lection- 
ary; but no act for this purpose shall be valid which is not voted 
for by a majority of the whole number of Bishops entitled to seats 
in the House of Bishops, and by a majority of all the Dioceses 
entitled to representation in the House of Deputies. 


ARTICLE 9. 


This Constitution shall be unalterable, unless in General 
Convention, by the Church, in a majority of the Dioceses which 
may have adopted the same; and all alterations shall be first pro- 
posed in one General Convention, and made known to the 
several Diocesan Conventions, before they shall be finally 


agreed to, or ratified, in the ensuing General Convention. 


ARTICLE 10. 

Bishops for foreign countries, on due application therefrom, 
may be consecrated, with the approbation of the Bishops of this 
Church, or a majority of them, signified to the Presiding Bishop; 
he thereupon taking order for the same, and they being satisfied 
that the person designated for the office has been duly chosen, 
and properly qualified; the Order of Consecration to be con- 
formed, as nearly as may be, in the judgment of the Bishops, to 
the one used in this Church. Such Bishops, so consecrated, shall 
not be eligible to the Office of Diocesan, or Bishop Coadjutor, in 
any Diocese in the United States, nor be entitled to a seat im the 
House of Bishops, nor exercise any Episcopal authority in said 
States. 


Done in the General Convention of the Bishops, Clergy, 
and Laity of the Church, the 2d day of October. 1789. 


VSOA- 


COINS WC Oe 
ADOPTED IN GENERAL CONVENTION, 


IN PHILADELPHIA, OCTOBER, 1789, 


AS AMENDED IN SUBSEQUENT GENERAL CONVENTIONS. 


ARTICLE I. 


Section 1. There shall be a General Convention of this 
Church, consisting of the House of Bishops and the House of 
Deputies, which Houses shall sit and deliberate separately; and 
in all deliberations freedom of debate shall be allowed. Hither 
House may originate and propose legislation, and all acts of the 
Convention shall be adopted and be authenticated by both Houses. 

Src. 2. Every Bishop of this Church having jurisdiction, 
every Bishop Coadjutor, and every Bishop who by reason of ad- 
vanced age and bodily infirmity arising therefrom has resigned 
his jurisdiction, shall have a seat and a vote in the House of 
Bishops. A majority of all Bishops entitled to vote, exclusive of 
Foreign Missionary Bishops and of Bishops who have resigned 
their jurisdiction, shall be necessary to constitute a quorum for 
the transaction of business. 

Src. 3. The Senior Bishop of this Church in the order of 
consecration, having jurisdiction within the United States, shall 
be the Presiding Bishop of the Church. He shall discharge such 
duties as may be prescribed by the Constitution and the Canons 
of the General Convention. But if the Presiding Bishop shall 
resign his office as such, or if he shall resign his episcopal juris- 
diction, or if by reason of infirmity he shall become disabled, the 


Bishop next in seniority by consecration, having jurisdiction 


135 


136 APPENDIX. 


within the United States, shall thereupon become the Presiding 
Bishop. 

Sec. 4. The Church in each Diocese which has been admit- 
ted to union with the General Convention shall be entitled to 
representation in the House of Deputies by not more than four 
Presbyters, canonically resident in the Diocese, and not more than 
four Laymen, communicants of this Church, having domicile in 
the Diocese; but the General Convention by Canon may reduce 
the representation to not fewer than two Deputies in each order. 
Each Diocese shall prescribe the manner in which its Deputies 
shall be chosen. 

To constitute a quorum for the transaction of business, the 
Clerical order shall be represented by at least one Deputy in each 
of a majority of the Dioceses entitled to representation, and the 
Lay order shall likewise be represented by at least one Deputy in 
each of a majority of the Dioceses entitled to representation. 

On any question, the vote of a majority of the Deputies pres- 
ent shall suffice, unless otherwise ordered by this Constitution or, 
in cases not specially provided for by the Constitution, by Canons 
requiring more than a majority, or unless the Clerical or the Lay 
representation from any Diocese require that the vote be taken by 
orders. In all cases of a vote by orders, the two orders shall vote 
separately, each Diocese having one vote in the Clerical order and 
one in the Lay order; and the concurrence of the votes of the two 
orders, by not less than a majority in each order of all the Dio- 
ceses represented in that order at the time of the vote, shall be 
necessary to constitute a vote of the House. 

Src. 5. In either House any number less than a quorum — 
may adjourn from day to day. Neither House, without the con- 
sent of the other, shall adjourn for more than three days, or to 
any place other than that in which the Convention shall be sitting. 

Src. 6. The Genera] Convention shall meet in every third 


CONSTITUTION, 1901. 137 


year on the first Wednesday in October, unless a different day be 
appointed by the preceding Convention, and at the place desig- 
nated by such Convention ; but if there shall appear to the Presid- 
ing Bishop of the Church sufficient cause for changing the place 
so appointed, he may appoint another place for such meeting. 
Special meetings may be provided for by Canon. 


ARTICLE II. 


SecTIon 1. In every Diocese the Bishop or the Bishop Coad- 
jutor shall be chosen agreeably to rules prescribed by the Conven- 
tion of that Diocese. Missionary Bishops shall be chosen in accord- 
ance with the Canons of the General Convention. 

Sec. 2. No one shall be ordained and consecrated Bishop 
until he shall be thirty years of age; nor without the consent of a 
majority of the Standing Committees of all the Dioceses, and the 
consent of a majority of the Bishops of this Church exercising 
jurisdiction within the United States. But if the election shall 
have taken place within three months next before the meeting of 
the General Convention, the consent of the House of Deputies 
shall be required in place of that of a majority of the Standing 
Committees. No one shall be ordained and consecrated Bishop 
by fewer than three Bishops. 

Sec. 3. A Bishop shall confine the exercise of his office to 
his own Diocese or Missionary District, unless he shall have been 
requested to perform episcopal acts in another Diocese or Mission- 
ary District by the Ecclesiastical Authority thereof, or in a vacant 
Missionary District by the Presiding Bishop of this Church, or 
unless he shall have been authorized and appointed by the House 
of Bishops, or by the Presiding Bishop by its direction, to act tem- 
porarily in case of need within any territory not yet organized into 
Dioceses or Missionary Districts of this Church. 


138 APPENDIX. 


Sec. 4. A Bishop may not resign his jurisdiction without 
the consent of the House of Bishops. 


ARTICLE IIT. 


Bishops may be consecrated for foreign lands upon due ap- 
plication therefrom, with the approbation of a majority of the 
Bishops of this Church entitled to vote in the House of Bishops, 
certified to the Presiding Bishop; under such conditions as may 
be prescribed by Canons of the General Convention. Bishops so 
consecrated shall not be eligible to the office of Diocesan or of 
Bishop Coadjutor of any Diocese in the United States or be 
entitled to vote in the House of Bishops, nor shall they perform 
any act of the episcopal office in any Diocese or Missionary Dis- 
trict of this Church, unless requested so to do by the Ecclesias- 
tical Authority thereof. 


ARTICLE IV. 


In every Diocese a Standing Committee shall be appointed 
by the Convention thereof. When there is a Bishop in charge 
of the Diocese, the Standing Committee shall be his Council of 
Advice; and when there is no such Bishop, the Standing Com- 
mittee shall be the Ecclesiastical Authority of the Diocese for all 
purposes declared by the General Convention. The rights and 
the duties of the Standing Committee, except as provided in the 
Constitution and Canons of the General Convention, may be pre- 
scribed by the Canons of the respective Dioceses. 


ARTICLE V. 


A Protestant Episcopal Church in any of the United States, 
or any Territory thereof, not now represented, may, at any time 
hereafter, be admitted on acceding to this Constitution; and a 


CONSTITUTION, 1901. 139 


new Diocese, to be formed from one or more existing Dioceses, 
may be admitted under the following restrictions, viz. :— 

No new Diocese shall be formed or erected within the limits 
of any other Diocese, nor shall any Diocese be formed by the 
junction of two or more Dioceses, or parts of Dioceses, unless 
with the consent of the Bishop and Convention of each of the 
Dioceses concerned, as well as of the General Convention, and 
such consent shall not be given by the General Convention until 
it has satisfactory assurance of a suitable provision for the sup- 
port of the Episcopate in the contemplated new Diocese. 

No such new Diocese shall be formed which shall contain 
less than six Parishes, or less than six Presbyters who have been 
for at least one year canonically resident within the bounds of 
such new Diocese, regularly settled in a Parish or Congregation, . 
and qualified to vote for a Bishop. Nor shall such new Diocese 
be formed if thereby any existing Diocese shall be so reduced as 
to contain less than twelve Parishes, or less than twelve Presby- 
ters who have been residing therein and settled and qualified as 
above mentioned: Provided, that no city shall form more than 
one Diocese. 

In case one Diocese shall be divided into two or more Dioceses 
the Diocesan of the Diocese divided may elect the one to which 
he will be attached, and shall thereupon become the Diocesan 
thereof; and the Bishop Coadjutor if there be one, may elect the 
one to which he will be attached; and if it be not the one elected 
by the Bishop, he shall be the Diocesan thereof. 

Whenever the division of a Diocese into two or more Dioceses 
shall be ratified by the General Convention, each of the Dioceses 
shall be subject to the Constitution and Canons of the Diocese so 
divided, except as local circumstances may prevent, until the 
same may be altered in either Diocese by the Convention thereof. 
And whenever a Diocese shall be formed out of two or more ex- 
isting Dioceses, the new Diocese shall be subject to the Constitu- 


140 APPENDIX. 


tion and Canons of that one of the said existing Dioceses to which 
the greater number of Clergymen shall have belonged prior to 
the erection of such new Diocese, until the same may be altered 
by the Convention of the new Diocese. 


ARTICLE VI. 


Section 1. The House of Bishops may establish Missionary 
Districts in States and Territories or parts thereof not organized 
into Dioceses. It may also from time to time change, increase, or 
diminish the territory included in such Missionary Districts in such 
manner as may be prescribed by Canon. 

Sec. 2. The General Convention may accept a cession of the 
territorial jurisdiction of a part of a Diocese when such cession 
shall have been proposed by the Bishop and the Convention of 
such Diocese, and consent thereto shall have been given by three- 
fourths of the parishes in the ceded territory, and also by the same 
ratio of the parishes within the remaining territory. 

Any territorial jurisdiction or any part of the same, which 
may have been accepted from a Diocese by the General Conyen- 
tion under the foregoing provision, may be retroceded to the said 
Diocese by such joint action of all the several parties as is herein 
required for its cession: Provided, that such action of the General 
Convention, whether of cession or retrocession, shall be by a vote 
of two-thirds of all the Bishops present and voting and by a vote 
of two-thirds of the House of Deputies voting by orders. 

Sec. 3. Missionary Districts shall be organized as may be 
prescribed by Canon of the General Convention. 


ARTICLE VII. 


Dioceses and Missionary Districts may be united into Provy- 


inces in such manner, under such conditions, and with such pow- 


CONSTITUTION, 1501. 141 


ers, as shall be provided by Canon of the General Convention; 
provided, however, that no Diocese shall be included in a Province 
without its own consent. 


ARTICLE VIII. 


No person shall be ordered Priest or Deacon until he shall 
have been examined by the Bishop and two Priests and shall have 
exhibited such testimonials and other requisites as the Canons in 
that case provided may direct. No person shall be ordained and 
consecrated Bishop, or ordered Priest or Deacon, unless at the 
time, in the presence of the ordaining Bishop or Bishops, he shall 
subscribe and make the following declaration: 

“T do believe the Holy Scriptures of the Old and New Testa- 
ments to be the Word of God, and to contain all things necessary 
to salvation; and I do solemnly engage to conform to the Doctrine, 
Discipline, and Worship of the Protestant Episcopal Church in 
the United States of America.” 

No person ordained by a foreign Bishop, or by a Bishop not 
im communion with this Church, shall be permitted to officiate 
as a Minister of this Church until he shall have complied with the 
Canon or Canons in that case provided and also shall have sub- 
scribed the aforesaid declaration. 


ARTICLE IX. 


The General Convention may, by Canon, establish a Court 
for the trial of Bishops, which shall be composed of Bishops only. 

Presbyters and Deacons shall be tried by a Court instituted by 
the Convention of the Diocese, or by the Ecclesiastical Authority 
of the Missionary District, in which they are canonically resident. 

The General Convention, in like manner, may establish or 
may provide for the establishment of Courts of Review of the de- 
terminations of Diocesan or other trial Courts. 


142 APPENDIX. 


The Court for the review of the determination of the trial 
Court, on the trial of a Bishop, shall be composed of Bishops only. 

The General Convention, in like manner, may establish an 
ultimate Court of Appeal, solely for the review of the determina- 
tion of any Court of Review on questions of doctrine, faith, or 
worship. 

* None but a Bishop shall pronounce sentence of admonition, 
or of suspension, deposition, or degradation from the ministry, 
on any Bishop, Presbyter, or Deacon. 

A sentence of suspension shall specify on what terms or con- 
ditions and at what time the suspension shall cease. 


ARTICLE X. 


The Book of Common Prayer and Administration of the Sac- 
raments and other Rites and Ceremonies of the Church, together 
with the Psalter or Psalms of David, the Form and Manner of 
Making, Ordaining, and Consecrating Bishops, Priests, and Dea- 
cons, the Form of Consecration of a Church or Chapel, the Office 
of Institution of Ministers, and Articles of Religion, as now estab- 
lished or hereafter amended by the authority of this Church, shall 
be in use in all the Dioceses and Missionary Districts of this 
Church. No alteration thereof or addition thereto shall be made 
unless the same shall be first proposed in one triennial meeting of 
the General Convention, and by a resolve thereof be sent within 
six months to the Secretary of the Convention of every Diocese, to 
be made known to the Diocesan Convention at its next meeting, 
and be adopted by the General Convention at its next succeeding 
triennial meeting by a majority of the whole number of Bishops 
entitled to vote in the House of Bishops, and by a majority of the 
Clerical and Lay Deputies of all the Dioceses entitled to repre- 
sentation in the House of Deputies voting by orders. Provided, 
however, that the General Convention at any meeting shall have 


CONSTITUTION, 1901. . 143 


power to amend the Tables of Lessons by a majority of the whole 
number of Bishops entitled to vote in the House of Bishops, and 
by a majority of the Clerical and Lay Deputies of all the Dioceses 
entitled to representation in the House of Deputies voting by 
orders. 

ARTICLE XI. 


No alteration or amendment of this Constitution shall be 
made unless the same shall be first proposed at one triennial meet- 
ing of the General Convention, and by a resolve thereof be sent to 
the Secretary of the Convention of every Diocese, to be made 
known to the Diocesan Convention at its next meeting, and be 
adopted by the General Convention at its next succeeding triennial 
meeting by a majority of the whole number of Bishops entitled to 
vote in the House of Bishops, and by a majority of the Clerical and 
Lay Deputies of all the Dioceses entitled to representation in the 
House of Deputies voting by orders. 


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